Does the right to disconnect really exist?

Ontario has had its work disconnection law for a year and Quebec is dragging its feet. In the middle of the holiday break, do we have the right to disconnect?

“I told my team, that I was writing to them at odd hours, but that I didn’t expect them to answer me,” cites Annie Boilard, president of the Annie RH Network, as an example. “Yes, thank you, she quips, but that’s not enough at the dawn of 2023. With the mental health issues facing Canadians, we expect better from our managers. »

The human resources specialist could spend all the holidays telling us about hyperconnected work behaviors that are harmful to both employees and managers.

“If I’ve finished my day, I’m playing with my kids or watching a movie with my partner and my boss texts me saying ‘Tomorrow morning is important, first business, come see me at the office”, the evening won’t be the same, even if it’s nonsense the boss wanted to talk about. »

“With teleworking, there has been a shift in culture,” adds labor law lawyer and partner at Langlois Marianne Plamondon.

However, unionized employees are, in principle, protected, because they are supposed to be paid each time the employer asks them to solve a problem outside working hours. This is called overtime. Unlike union members, professionals and managers have an annual salary. The employer therefore has no limitation in his right to ask for work on evenings and weekends, since he does not have to pay overtime, explains the lawyer.

A year already in Ontario

While many countries already have a work disconnection law (see box), in Canada the federal government has been considering it for four years, because failure to respect break times has an impact on anxiety, depression and burnout, recalls Annie Boilard.

Ontario is the only province that has taken action. The only place in all of North America, by the way.

Since June 2022, its law adopted in 2021 requires companies with 25 or more employees to adopt a disconnection policy, but does not specify its content.

Disconnection is defined there as not making work-related communications (emails, texts, phone calls, video calls) outside of working hours.

As the content is completely free, it leaves a lot of room for the employer to create exceptions to the disconnection if business imperatives require it, specifies Marianne Plamondon.

“I’ve seen policies that say employees have the right to log off between 5:00 p.m. and 9:00 a.m. on weekends and holidays, unless the customer requires it. So what does it actually change? Not much, ”analyzes the lawyer.

However, the Ontario policy has the advantage of addressing all employees, up to the most senior executive of the company, whereas often the laws govern the work of first-level employees.

While it is still too early to know if there have been any complaints in Ontario, it should be noted that they would only concern the fact of not having a disconnection policy. No sanction is foreseen if said policy is not applied.

Can Quebecers disconnect?

Although Québec solidaire is not letting go with its idea for a work disconnection bill presented in 2018, which it addressed again last week, the provincial government has not yet felt the need to legislate.

Vacations, breaks and the right to refuse to work are protected under the Standards Act work. If an employee has to work during these periods, he has the right to regain his vacation days or to be paid for them.

If a manager sends emails to repetition at night to employees and demands that we respond to it, the employee will choose to file a complaint for harassment, observes the labor lawyer.

Despite the absence of law, Quebec employers have still chosen to enact a policy of disconnection, observe Marianne Plamondon and Annie Boilard. Either because the companies have customers in Ontario or they have subsidiaries in that province and Ontario law even implicates the presidents. Or, also, because they want to stand out as employers in these times of labor shortage.

In order to delimit urgent situations, a tendency is beginning to take hold in companies, that of registering in the subject of the e-mail that it requires a response outside regular hours. “It’s part of good practice and Quebec employers have followed suit,” notes Marianne Plamondon.

“Given all the worrying indicators on mental health, do we really need to wait for legislation in Quebec to take action? », concludes Annie Boilard.