Ontario recently passed Bill 27: Working for Workers Act, 2021 (the “WFWA”), a “right to disconnect” law that is the first of its kind in any jurisdiction in Canada. Under the WFWA, which is now in effect in Ontario as of June 3, employers with 25 or more employees must have a written policy in place for all employees giving them the right to disconnect at the end of their workday. The “right to disconnect” is a proposed human and legal right that was first implemented in France through legislation to protect workers from after-hours work, and subsequently implemented in Italy, Spain, Ireland, and now Ontario.
“Disconnecting from work” is defined in the WFWA as not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.
In Ontario, the right to disconnect under the WFWA applies to all employees, including managers and executives. According to the Ontario Minister of Labour, the WFWA “was created in response to the increasingly blurred lines between work and home” caused by the COVID-19 pandemic.
Although the WFWA does not provide for specific penalties if an employer’s right to disconnect policy is breached, an employee may file a complaint with the Ministry of Labour if there is a breach of such policy (along with any other breach of the Ontario Employment Standards Act, 2000 (“Ontario ESA”), including the “three-hour rule” discussed below). In fact, the WFWA doesn’t provide many specifics with respect to what a right to disconnect policy should include or look like. We expect that the associated Regulation, when it is put out, will provide more clarity for Ontario employers, including how the right to disconnect applies in the case of the “three-hour rule”.
Three hours’ minimum pay for workers
Employees must be paid a minimum of three hours’ pay for any work they do in Ontario under s. 21.2 of the Ontario ESA. A similar three hours’ minimum pay rule (the “three-hour rule”) also exists in Alberta under s. 11(1) of the Employment Standards Regulation, which is subject to certain exceptions (for example: for workers employed in a recreation/athletic program on a part time basis by a municipality, Metis settlement or community service not-for-profit organization; workers employed as school bus drivers; or workers aged 13-15 who are required to attend school). It should also be noted that, unlike the right to disconnect, the three-hour rule does not apply to salaried or managerial employees in either Alberta or Ontario. Nonetheless, such employees may still be subject to overtime entitlement in accordance with the “8/44 Rule” under s. 21 of the Alberta Employment Standards Code (“Alberta Code”), if they work in excess of a total of 8 work hours in each work day in a work week or 44 hours in a work week.
Does the three-hour rule apply to remote work after hours?
An interesting employment law issue arises when the WFWA is read in conjunction with the three-hour rule under the Ontario ESA: employers may now be required to pay eligible employees a minimum of three hours’ pay for any after-hours phone calls or emails. Before the pandemic, the three-hour rule was generally interpreted as being applicable to employees who were required to physically come into an office or workplace to work. However, the evolving nature of hybrid and remote working arrangements post-pandemic where workers are now increasingly working from home in some capacity means that the three-hour rule will likely now apply to any form of work, including work that is conducted from home, in an employee’s after work hours.
Given the Ontario Minister of Labour’s comments about the WFWA “rebalancing the scales” to put workers in the driver’s seat of Ontario’s economic growth, it seems that the intent of the Ontario government in passing the WFWA was to address all forms of after-hours work. It is therefore very likely that the three-hour rule will apply equally to remote work and work in the office in Ontario. For example: employment laws still apply to employees working remotely regarding what breaks employees are entitled to (and for how long); limits for employees on the total hours they can work in a week and hours that an employee must be given off between shifts; and entitlement to overtime pay. In Alberta, employment rules in Part 2, Division 3 of the Employment Standards Code with respect to hours of work, notice of work times, rest periods, and days of rest also apply equally to remote or hybrid work arrangements.
However, it should also be noted that this issue has not yet been judicially considered or considered by any tribunal or board in Canada. Therefore, this issue has yet to be tested in Ontario or elsewhere.
The three-hour rule and after hours work in Alberta
Like Ontario, Alberta’s three-hour rule was generally considered to apply when employees were required to physically come into an office or work place. Yet, despite Alberta not having any right to disconnect legislation, the right to disconnect for employees is an issue of increasing relevance everywhere. This is particularly so with the trend we are seeing of more hybrid work policies and remote working arrangements post-pandemic, as the line between working hours and non-working hours blurs with the increasing connectivity of workers and remote working arrangements. Employers should also remember that the Alberta Code still regulates employees’ total working hours, including rights to overtime and the “8/44 Rule”, in this context. Federal employees are similarly regulated under the Canada Labour Code, with certain exceptions.
Given the likelihood of this issue being judicially or administratively considered by a board or tribunal in the future, it would be prudent for Alberta employers to be mindful of the three-hour rule in the context of after-hours work that may be done remotely by any non-salaried or non-managerial workers. This includes emailing, calling, or texting employees after hours. Alberta employers may be on the hook financially for such after-hours work, even, for example, for a two-minute phone call or email to an employee.
We recommend that Alberta employers, whether provincially or federally-regulated, consult with an experienced employment lawyer to review their policies on remote and after-hours work, to avoid any unexpected financial liability. An experienced employment lawyer can also advise employers on implementing averaging or overtime agreements (as required). Likewise, employees who want to understand their legal rights with respect to after-hours work expectations, should also retain an experienced employment lawyer.
The federal government has also been considering right to disconnect legislation, and the Final Report of the Right to Disconnect Advisory Committee was issued in February 2022. The current situation for federally-regulated employees is that an employee who chooses to respond to work-related communications after hours when not requested or permitted to do so by their employer will not have such after-hours communications treated as working hours. However, where an employee is responding to such after-hours communications at the request of an employer, or if the employer permits or condones such work, such time may be considered as working time, which must be paid. This could entitle a federally-regulated employee to overtime pay for such after-hours remote work.
Under section 11.1 of the Canada Labour Standard Regulations, the three-hour rule applies to federally-regulated workers who are required to report for work at the request of an employer. Although this rule has not been interpreted to apply to remote work, this situation could change if right to disconnect legislation is also enacted at the federal level.
CARSCALLEN LLP’S EMPLOYMENT, LABOUR AND HUMAN RIGHTS EXPERTISE
Whether you are an employee or an employer, Carscallen LLP’s experienced team of Employment, Labour and Human Rights lawyers can assist you. Our lawyers specialize in practical, individualized advice to help you understand your rights, duties and responsibilities as an employer or an employee. Our team of lawyers provide tailored, proactive advice to help successfully navigate every stage of the employment relationship. We have the legal expertise to help minimize problems and disputes before they happen, as well as the ability to resolve conflict quickly and constructively when it arises.
If you are an employer or employee and have any questions about the calculation of notice or severance pay upon termination, or any other employment law questions, please contact any member of our Employment, Labour and Human Rights team.*This update is intended for general information only on the subject matter and is not to be taken as legal advice.