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Enforcing the right to disconnect from work

Should our labour laws be updated to include an actionable right?

Right to disconnect

We’ll be unpacking the pandemic’s effects on working life for many years to come — or at least until the next one hits. Governments and public health officials didn’t exactly break the old workplace model by shuttering businesses and sending office workers home, but they did accelerate certain trends that technology had set in motion already.

We were talking about the “right to disconnect” before the lockdown winter of 2020, but the pandemic — by blurring the line between home and workplace — shone a spotlight on workers’ struggles to break free from constant electronic connection to the office. In 2015, Angus Reid said that 40% of Canadians were reporting that technology had them working longer hours. France amended its Code du travail in 2016 to compel employers to negotiate with employees to limit the use of digital tools after working hours. Several other European countries followed suit.

The federal government launched an expert panel on labour standards in 2019; it concluded later that year that a right to disconnect would be too difficult to enforce. Quebec’s legislative assembly debated a right to disconnect bill in 2018 before dropping it that same year. And that’s how things stood in Canada until Ontario passed the Working for Workers Act (WFWA), which amended the Employment Standards Act (ESA) to introduce and define a right to disconnect.

Except, it didn’t really do that. The WFWA requires employers with 25 or more employees (a small fraction of employers in the province) to come up with a policy on disconnecting from work. The employer is responsible for shaping the contents of the policy — there are no guidelines on what it should contain. There is no penalty for failing to comply with such a policy.

The WFWA is, in short, an empty bucket. If you’re working in labour law, how you feel about the legislation’s largely symbolic nature probably depends on whether you think the right to disconnect is a solution in search of a problem.

“As it stands, the only thing that can happen under Ontario’s law is that a company can be held liable for not having a plan. In a sense, it presents as largely cosmetic,” said Fife Ogunde, a policy consultant for the government of Saskatchewan. He recently published a paper in the Canadian Bar Review on the right to disconnect that concluded current labour laws are inadequate to curb the creeping impact of constant connectivity on the personal lives and mental health of Canadians.

“There is no actual right to disconnect under Canadian law, and even if such a right existed there’s the question of how it would be enforced,” he said. “If you’re going to extend a right, let it be explicit. There is no right without a remedy.”

Labour laws nationwide set upper limits on the amount of time employees spend working. But those laws tend to be blurry when it comes to activities that don’t clearly present as “work” — such as being on-call or answering work emails or texts during off-hours. The ESA and other provincial laws “do not apply in emergency cases,” Ogunde wrote, adding that such cases are “typically undefined under legislation. Practically speaking, it implies that employees must in some way remain available in emergency circumstances.”

Many employment standards laws were crafted for an age before smartphones, when employees worked set shifts for employers who weren’t struggling to compete in a 24-7, global digital marketplace. Such employers now demand greater “flexibility” from their employees, ramping up the pressure they face to stay on the clock.

Ogunde says lawmakers have several options for helping workplaces establish healthier work-life balances. Instead of relying on employers and employees to thrash it out on their own, he said, regulations under labour laws like the ESA could “include … conditions under which an employee is free to disconnect from work.”

Such regulations could spell out exceptions to the right to disconnect. They could, for instance, specifically exempt certain categories of employees, such as managers. Employment standards laws could be amended to expand the definition of “work” to include things like engaging with email.

Whatever else regulations do, said Ogunde, they would have to explicitly shield employees from retaliation for exercising the right to disconnect.

Not everyone agrees, of course. Christopher Achkar, labour law practitioner and owner of Achkar Law, argues that Ontario’s tinkering with the ESA likely took the right to disconnect as far as it can go.

“Look, for the vast majority of workplaces, this is a non-issue,” he said. “This law was introduced without teeth, yes, but it was introduced to start a conversation about what is acceptable and what is not acceptable. Making it mandatory to come up with a workplace plan brings public opinion into play.”

On the other hand, trying to nail down the right to disconnect in regulations would risk painting both employers and employees into a corner, Achkar said.

“An enforceable right to disconnect would have a widespread negative effect on business efficiency, customer service, online shopping — real-world consequences,” he said. He added that it would encourage employers to replace more of their workforces with part-time or contract people.

The twinned impact of the pandemic and technology left workplaces worldwide in a state of flux. White collar workers found themselves with more flexible schedules, allowing them to mingle their working and private lives in new ways. This has had both good and bad effects. But if employers find themselves hemmed in by right-to-disconnect regulations, said Achkar, they will be less inclined to be liberal with employees seeking flexible arrangements.

“You could see more employers conclude that they’ve got to tighten policy at the other end because employees are refusing after-hours communications,” he said. “You could see more employers become more ruthless with how their people dispose of work hours.

“Employees have protections. If a boss is screaming at an employee at 9 a.m. because they didn’t respond to a message at 11 p.m., that’s bullying and a case can be made. But the creation of a whole new actionable right isn’t necessary.”