Workplace culture an important part of right to disconnect legislation ⋆ LegalMattersCanada

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Allows employees to turn off their electronic work devices

CTV reports governments around the world are looking at the right to disconnect regulations after France introduced legislation in 2016 that allows employees to turn off their electronic work devices outside of business hours.

According to CTV, Tassi says the changing work environment precipitated by the pandemic has led to issues in the employment world that need to be addressed.

“I see this as a potential storm that is brewing in labour and so these converging trends are happening now, and they’re becoming more rapid, more pronounced,” Tassi told CTV.

Zaman says she is pleased to see some movement to protect those who work remotely.

“The right to disconnect is becoming a priority as work from home becomes an indefinite reality for many workers,” she tells LegalMattersCanada.ca. “Without a viable plan employees may be driven to burn out or they may continue to work unpaid overtime hours.”

Zaman points out that while employees may be entitled to overtime pay under the Employment Standards Act, 2000 (ESA), those working from home may not be receiving all they deserve.

“Either employers may fail to track the hours properly or employees may feel there could be some sort of reprisal for claiming overtime while working from home,” she says.

‘Labour laws can be effective in protecting workers’ rights’

Zaman says existing labour laws can be effective in protecting workers’ rights, adding that working remotely brings new challenges and the line between home-life and work-life has become increasingly blurred.

“We have the right to rest days that are protected under the ESA, along with maximum hours of work,” she says. “Employees can agree in writing to work hours that are over those limits, but that is subject to certain requirements. While the ESA currently provides certain protections employees have with respect to break and rest days, that is not really the right to disconnect.”

Employee burnout is a health and safety concern that may be more prevalent in today’s working environment, Zaman says.

“Under the Occupational Health and Safety Act, employees are entitled to a reasonably safe and healthy work environment,” she says. “If an employer is demanding their employees be available, whether explicit or implied by the culture of the workplace, that can definitely take a toll on the employee’s mental or physical health.

“With respect to the right to disconnect, there’s no existing law that really provides for that,” Zaman adds. “Some employers do have policies in place dealing with it such as outlining when employees are expected to communicate or be online.”

She says specific regulations could clear up existing confusion but it takes more than just a new law.

‘We also need a shift in mindset and workplace culture’

“It is going to be helpful in the short and long run to have some sort of legislation but we also need a shift in mindset and workplace culture because they have to go hand-in-hand if there is to be meaningful change,” Zaman says. “There needs to be a workplace culture that is considerate of the work-life integration to ensure employees are not pushed to the point of burnout.”

She says her firm has dealt with employers who have already implemented policies to deal with the problems that arise from remote working.

“However, when it comes to the right to disconnect, what is the expectation? What are the employees’ obligations to be available? There are questions that need to be answered,” says Zaman. “What the legislation would do is provide some guidance surrounding that. Employers would then be effectively forced to comply because if they don’t, there would be repercussions including penalties, damage to reputation and, beyond that, a concern about losing talent, which is obviously very valuable.”

She says any legislation should take into account the need for flexible hours.

“For example, rather than a strict nine-to-five working hours rule there should be a compromise that also works for an employee with childcare responsibilities,” Zaman explains. “Employers would have to be mindful of individual circumstances and needs.

“The right to disconnect will have to take into account various other factors. It’s not going to apply the same way to all employees,” she adds. “Even within existing legislation, there are differences that are accounted for depending on the nature of the employee’s role.”

Human rights code has provisions to accommodate workers

She notes that the Ontario Human Rights Code has provisions to accommodate employees up to the point of undue hardship that deal with legitimate needs such as those based on the grounds of family status.

Zaman says rather than wait for legislation to be passed, employers “can actually be proactive and think about how to ensure they have a workplace culture that takes into account and respects employees’ boundaries.”

“Even before the legislation is in place or even before we have details about it, some employers might be willing to address employees’ right to disconnect. It could boost morale, especially in light of the pandemic,” she says. “In that case, what they can do is review their policies and revise them as needed

“If they don’t have existing rules, they can craft creative policies and procedures with respect to disconnecting after hours,” Zaman adds. “There might be some differences between types of employees, depending on the nature of the roles, but that could help cultivate a workplace culture that is considerate of work-life integration in a proactive manner.”