As businesses continue to look forward as they develop staffing plans to tackle 2023, they may also wish to take a quick look back at new policies that have now been added to the Employment Standards Act, 2000.
These include the right to disconnect legislation first unveiled in Ontario Bill 27 in December of 2021, and the electronic monitoring policy outlined in Bill 88, Working for Workers Act, 2022, and added to the ESA in April of last year.
The new policies – the subject of much discussion since they were first introduced - directly affect employers that employ 25 or more employees as of January 1 of any year and must be in place before March 1 of that year.
We reached out to Meagan Swan, an employment law expert at Pavey Law LLP in Cambridge, to offer insight on what these new policies mean for employers:
Q. What should employers be thinking about when it comes to timelines surrounding these ESA changes?
Meagan: Employers were supposed to have these new policies in place last year, but as we know for some employers it takes a new year to really start thinking about what needs to be done in 2023. If an employer now has 25 employees, inclusive of all the employer’s business locations, as of Jan. 1, these policies are to be in place by March 1 of each year and provided to their employees within 30 days.
The government has been very reasonable about rolling out the new requirements and giving lots of notice in advance. As we start a new year, employers need to think, ‘do I now meet the employee threshold’ and ‘if I do, how do I create the right policy for my business’.
The timelines each year do give employers a buffer to ensure they have any new policy reviewed before implementing them with employees.
Q. What are some of the steps employers should be taking regarding these policies if they haven’t already?
Meagan: The first step is to make sure they have the necessary policies in place by March 1 that work for their business. However, employers need to understand that these new policies do not give any new rights to employees. They are basically setting out what the expectations are when it comes to electronic monitoring and the right to disconnect. These policies are all about being transparent.
An employer can tailor these policies to their business. For the Right to Disconnect policy, an employer can outline the expectations for when an employee is required to review or respond to emails after hours or engage in other after-hours activities.
An employer can also include exceptions in their policy to address urgent work that may arise.
Communicating these expectations to employees is likely not new. Rather, we are now requiring employers to have these expectations outlined in writing. I have seen some employers implement standard form policies – because there are lots of templates online – and then they end up restricting themselves more than necessary because many are very employee focused.
These standard form policies don’t consider or address each employer’s specific business or its needs, so it’s important to obtain advice regarding the use of any template to see if it’s the right fit for your business.
An employer should ensure their policy includes those exceptions and considerations needed for their own operations. Simply, an employer should consider obtaining professional assistance when creating their policies.
Q. What type of penalties could employers be facing surrounding lack of policy implementation?
Meagan: The government has not updated the regulations to include any specific penalties related to these new policies. As of now, the standard complaint process to the Ministry of Labour is available to employees if an employer had not complied with its requirement to implement the policies. This type of complaint will likely trigger a visit or communication from an ESA officer to investigate whether the employer is compliant. If not, an Order requiring the employer to become compliant will likely be issued.
Q. Were there many changes to the Employment Standards Act in 2022 and did the pandemic play a role?
Meagan: COVID-19 has really pushed the government to implement new regulations through the ESA. For example, we had the Infectious Disease Emergency Leave (IDEL) regulation implemented to temporarily change the ESA rules related to reduction of hours, pay and layoffs. We all know that the pandemic also required many employees to work remotely.
Many of these employees began feeling the stresses of remote work and maintaining a balance between their home and work life. I believe the government was reacting to these pandemic related issues by implementing the requirement for employers to have Right to Disconnect and Electronic Monitoring policies in their workplace.
Many employers were hesitant at first and believed these polices would be onerous or would take away their ability to manage their own business.
But in reality, most of my clients have been able to implement policies that fit their business and it is now very transparent to employees what the expectations are for remote work and the monitoring of work.
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