The Right to Disconnect for Federal Workers

Overview

Among many initiatives in the recent federal budget, one particular proposal has garnered attention as it relates to labour and employment legislation. This is the proposal of the “right to disconnect.”

Found in “Chapter 4 – Economic Growth for Every Generation”, the federal government states that:

As the nature of work in many industries has become increasingly digital, workers are finding it increasingly difficult to disconnect from their devices and inboxes after hours and on weekends. This has particularly impacted Millennial and Gen Z workers, many of whom have worked their whole careers without firm separation between work and personal time.

As part of establishing a “right to disconnect”, the federal government proposes amending the Canada Labour Code, RSC 1985, c L-2 (the “Code”) in such a way as to require federally regulated employers to establish a right to disconnect policy. As part of this policy, federally regulated employers would be limited from sending work-related communications to employees outside of scheduled work hours. In order to spur on these amendments, the federal government proposes to provide $3.6 million over five years to the Labour Program at Employment and Social Development Canada.

The federal government has stated many reasons for proposing the “right to disconnect,” and there are perceived political benefits to this approach. In addition, the Canadian Centre for Occupational Health and Safety states that organizations that do not allow workers to disconnect sufficiently may experience more:

• Workplace incidents, workers’ compensation claims, and lost time;
• Turnover;
• Errors and quality decline; and
• Negative company reputation.

The Law

The issue of an employee’s ability to disconnect from work is not new to Canada. In 2021, the Ontario government passed Bill 27, formally titled the Working for Workers Act, 2021, SO 2021, c 35. Bill 27 amended Ontario’s Employment Standards Act, 2000, SO 2000, c 41 to include a “Written Policy on Disconnecting from Work.” Under this amendment, any Ontario employer that employs 25 or more employees is obligated to have a written policy in place. The amendment goes on to define “disconnecting from work” as meaning not engaging in work-related communications, including emails, telephone or video calls, or even sending messages. Importantly, missing from Ontario’s disconnect provision is the mention of a right, seemingly an intentional omission that ensures the scope of the provision does not expand to give employees a “right to disconnect.”

Outside of Ontario, no other jurisdiction in Canada has legislated “right to disconnect” policies to-date. However, there are several jurisdictions outside Canada that have done so, and it appears to be a growing trend.

The Takeaways

The biggest takeaway from the proposed federal “right to disconnect” proposal is that it will only apply to federally regulated employers and that, outside of Ontario, no province or territory has legislated in this area. Additionally, as mentioned earlier, Ontario did not create a “right to disconnect” but rather obligated employers to create a policy on the issue.

It is evident from much of the wording in Budget 2024 that the Budget is focused on proposing polices that appeal to younger Canadians, specifically, Millennials and Gen Z – the largest bloc of eligible voters. While this is largely a political move, employers should be aware that the notion of disconnecting from work is becoming an increasingly discussed topic of labour and employment law, both at home and abroad.

The Covid-19 pandemic forced many employers to transition employees to remote work, and many employees continued to work remotely. As such, more and more employees are “connected” on a continual basis, and the lines separating designated work hours from rest hours have begun to blur. However, there is currently no obligation for provincial employers outside Ontario to create workplace disconnect polices.

There is currently no discussion by the Alberta government to enact similar legislation. That is good news for employers seeking to avoid red tape and interference with the employment relationship. It will be interesting to see if other governments take up this issue.