As a result of the COVID-19 pandemic, Ontario’s labour market experienced significant disruptions and a permanently shifted work landscape. Employers grapple with redefined work locations, rapidly changing public health standards, and the need for economic revitalization.
To aid the province’s recovery scheme, the Ontario government introduced Bill 27: the Working for Workers Act, on October 25, 2021. If passed, this Act will amend numerous pieces of legislation including the Employment Standards Act, 2000 (ESA), in efforts to improve protection and support for Ontario’s workers while maintaining a competitive advantage in attracting leading global talent.
Disconnecting from work policy
Significantly, Bill 27 amends the ESA by introducing a requirement for employers with 25 or more employees as of January 1 of any year to ensure, prior to March 1 of that year, that they institute a written policy for all employees with respect to disconnecting from work.
Disconnecting from work is defined as “not engaging in work-related communications, including emails, telephone calls, video calls, or the sending or reviewing of other messages, to be free from the performance of work.”
The policy must include the date it was prepared and the date(s) any changes were made to it. Employers will be required to provide a copy to each employee within 30 days of preparing this policy, or, if an existing policy is amended, within 30 days of any change(s).
The same 30-day window applies to providing new employees with the policy as well. Notably, employers will be required to retain copies of every policy for three years after the policy ceases to be in effect.
While the current draft of Bill 27 does not prescribe any mandatory content for such policies, it indicates forthcoming regulations that will prescribe certain elements that must be contained in the policy.
Bill 27 has passed first reading, and is expected to receive royal assent and be passed into law. In terms of compliance, an employer would have six months from that date (and not March 1) to put a policy in place. The date the employer would use for assessing whether it has 25 or more employees would be the January 1 preceding the date that is six months after the day the legislation receives royal assent.
The proposed legislation stems from recommendations made by the Ontario Workforce Recovery Advisory Committee (OWRAC), which consulted with a range of community stakeholders including workers, employers, and unions. The OWRAC was established this summer to help position the province as “the best place in North America to recruit, retain, and reward workers.”
Implications for the real estate industry
The real estate and property management industries may face particular hurdles with respect to implementing the proposed disconnecting from work policy.
In order to oversee and manage projects with minimal disruption to commercial or residential properties, the flow of work or to people’s lives, employees in these industries are typically required to respond to work demands in real-time, at off hours, and across a wide array of physical settings.
While some oversight and management can be done remotely and within ‘reasonable’ working hours—for example, conducting virtual property oversight—the nature of each project may inherently require on-site staff, whether it be facility cleaners, property managers and/or maintenance staff, in order to ensure safety, compliance, and efficiency.
In addition, employees desperate to keep their jobs amid such economic uncertainty are intent on being nimble and available at all hours to respond to employer demands across all sectors. Technological advancements have more deeply entrenched the expectation of meeting real-time demands, thereby undermining the notion of a “typical work day” in sectors that require around-the-clock commitments.
As public health guidance around work landscapes (both physical and substantive) continues to shift, employer flexibility and adaptability to different forms, modes or methods of property management and oversight, predicated on transparency, will be key.
Bill 27 and its regulations have not passed into law, so employers cannot yet know the scope or extent of their obligations in respect of some of the proposed changes to the ESA or what this means for their workforces.
Many fear this legislation, instead of helping workers and/or promoting better work-life balance, may create a two-tiered workforce by which some employees would choose to disengage according to the policy in place.
Others could remain constantly available, hungry for additional work and intent on earning overtime pay, being considered for promotions and/or bonuses. The inadvertent prospect of reputational or financial punishment for those employees abiding by the policy could be significant.
The extent to which it is even plausible for the real estate and property management industries to fully disconnect in compliance with “regular” work days remains to be determined by the scope outlined in forthcoming regulations.
Important questions remain around implementation and enforcement. It may require these sectors to reconceptualize the ways in which management and oversight are carried out. This includes the possibility of streamlining processes to enhance efficiencies (including advanced technology), and/or the reconfiguration of tasks and the diversification of workforce composition to ensure work is completed appropriately while respecting employees’ rights—without reprisal.
Flora Vineberg is a lawyer at SpringLaw. She specializes in labour and employment law, with a specific focus on sexual assault, harassment and human rights litigation, and workplace investigations. Employing a client-centred and trauma-informed approach, Flora’s background in both criminal and civil law enables her to represent clients from all walks of life with compassion, tenacity and focus. She can be reached at fvineberg@springlaw.ca
www.springlaw.ca.
