CHAUDHRI: Right to disconnect changes landscape for employers – Toronto Sun

Author of the article:

Sunira Chaudhri

Lawyer Sunira Chaudhri is a Partner at Workly Law.
Lawyer Sunira Chaudhri is a Partner at Workly Law. Photo by Supplied /Workly Law

This week, the Ford government announced its proposal to introduce new labour legislation — the Working for Workers Act 2021 — that will require employers with 25 or more employees to prepare right to disconnect policies in the workplace.

This means that emails sent into the night and internal chat messages discussing work would have to cease at the end of an employee’s normal workday.

Not only that, the proposed legislation would also prohibit employers from using non-completion agreements with employees, which typically aims to limit employees from jumping over to work for a competitor or start a competing business if they resign or are terminated.

Minister of Labour Training Skills and Development Monte McNaughton said, “Make no mistake, the bill supports the people or our province who work hard, put in a good shift and take pride in a job well done,” highlighting the new pressures that COVID-19 has introduced.

COVID-19 has certainly blurred the lines between family life and work life. Working from home has no finish line. There is no ceremony to the end of the workday. No ritual of bidding adieu to your neighbour, no rinsing of your favourite coffee cup, no rush to the train.

Most of us, propped up at the kitchen table or in our bedrooms, stop only when we must; snapping out of the flow of working to tend to a familial or home obligation.

It seems true that people are working more now than before. COVID-19 burnout is real. An Angus Reid survey conducted for software company Sage Canada earlier this year found one in three workers worry exhaustion will affect their ability to do their job.

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How will the Right to Disconnect legislation, if passed, change things for Canadian workers?

Firstly, if your workplace has little to no boundaries with respect to the use of digital communication, this legislation will target it and nip it in the bud. Emails are a form of invisible work. Even reading emails (whether you respond or not) takes effort and concentration. It is labour that many employees do not get paid for and employers don’t recognize.

Employers that require you to be online at all hours of the evening, delegating work late and requiring prompt responses after working hours will simply have to change their cultures.

Secondly, employees who are still required to work into the evening have better grounds to claim overtime and for their claims to be more widely recognized. Employers having to pay for this extra work will more readily accept they have to change to adapt.

The curious thing about the Right to Disconnect legislation may be the timing of its introduction.

Since the inception of COVID-19, we have more readily embraced remote work and “flexible” workdays. This means some of us are getting our best work done in the early morning hours while others are putting in their time after the kids head to bed. Because of that, we are having less overlap with our teammates, less opportunity to meaningfully collaborate and emails are flying around many hours of the day without us realizing that the workday has naturally expanded to accommodate this flexibility.

Any Right to Disconnect policy must be cognizant of this reality.

How will the Right to Disconnect impact employers? More policies! Employers have had to catch up quickly; introducing vaccine policies and remote work policies in the last year. A right to disconnect policy should be drafted carefully after analyzing how your workplace operates.

Perhaps more important, employers will have to review their employment agreements and revise them quickly. As non-competition agreements become vestiges of the past, employers must revise employment agreements to ensure they do not run afoul of new legislation. Failing to do so could render your entire employment useless.

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On to your questions from this week:

Q. I am seeking a religious exemption for taking the COVID-19 vaccine. My employer has given me a lot of paperwork. Is it worth it to fill out or will I get denied anyway and my employer is just doing this to cover its tail?

A. According to the Human Rights Tribunal of Ontario, employers are to accommodate religious exemptions, within reason. If you don’t fill out the requisite paperwork you don’t have a shot. If your paperwork reflects a personal preference it may not be approved. For the time being it is up to the discretion of your employer to determine if the exemption is supported.

Q. I was terminated months ago and I still do not have a job. I believe COVID-19 has really reduced my chances of getting a job in my field. I already signed and accepted a severance package but now I feel it is too little. Now that I still don’t have a job can I go after my employer? I did not know the market would be this bad.

A. If you have signed a release in order to accept your severance package it is extremely difficult to turn back the clock and unravel the settlement. COVID-19 has proved to be more difficult for some employees to reemploy. Before accepting a severance package, employees should always get legal advice to determine if the offer made can be improved upon.

Have a workplace question? Maybe I can help! Email me at sunira@worklylaw.com and your question may be featured in a future article.

The content of this article is general information only and not legal advice.

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