Remote Work and the Right to Disconnect Policy

Since COVID, many companies have gone remote, saving on overhead and travel costs for employees working remotely. But remote work blurs the line between work time and personal life, with employees working longer or irregular hours than in office settings. Zoom and Microsoft Teams amplify expectations for constant communication, including emails and phone calls, and pressure for work-related communications, including after-hours responses. For employers, this creates legal and operational challenges that a “right to disconnect policy” for remote work can solve.

The Right to Disconnect

France introduced le droit à la déconnexion in 2017, making the right to disconnect a legal right. Ontario amended the Employment Standards Act in 2021 with the “Working for Workers Act”, requiring employers with 25+ employees to have a written right to disconnect policy for communications outside of working hours.

British Columbia hasn’t followed yet, but the pressure is building to support employees’ ability to disconnect from work. A 2024 survey found 28% of workers struggle to disconnect from work after regular work hours.

Risks of Not Disconnecting

If employees feel they must constantly be available for emails or phone calls, then burnout and disengagement are more likely to occur. If the expectation to be available becomes too severe, or it does not accord with the written employment contract, it may also amount to constructive dismissal.

If an employer requires an employee to “be available” after normal working hours, then the employer may be responsible for paying that employee wages, or overtime wages, for that time spent. This applies even if the Employee voluntarily works those hours. Failure to pay those wages could result in a claim of constructive dismissal, and/or a wage loss complaint to the Employment Standards Tribunal.

Burnout, disengagement, constructive dismissal claims, wage dispute claims, all become issues that Employers and their Human Resources departments must spend hours and significant resources addressing. This diverts the focus of the employer away from other important tasks, like trying to grow its business.

Legal Risks Employers Must Address

Navigating employment law is key to avoiding pitfalls:

• Constructive Dismissal: If expectations to work after hours escalate beyond what the employee reasonably agreed to, this may form the basis of a claim.
• Mental Health Claims: Overwork and pressure to be available can aggravate pre-existing conditions, triggering human rights obligations.
• Privacy Issues: Monitoring tools in remote work must comply with privacy laws, especially for employees working from home, to avoid legal exposure.

A Generational Divide in Expectations

Generally, there is a split between older generations and younger generations in the workforce. Stereotypically, the newer generation has different priorities or principles, including the right to time off, to disconnect, and the right to a work-life balance, which a “right to disconnect policy” supports. Older generations/Managers/Employers often do not fully understand these priorities, because their priority is typically to maximize growth and profit, and hard work and long hours are typically accepted as the best means of doing this.

Employers should look at their individual businesses and determine for themselves if the long hours and the constant connection are serving their purpose, or if it is just resulting in a higher turnover of employees and increased Human Resources work/cost. Is there a way that the employer could instead focus on maximizing employee efficiency in the regular workday?

Recommendations for Employers

To manage legal risks and support employees working remotely, employers should consult employment law professionals to implement:

Create a Written Right to Disconnect Policy

Employers should consider preparing a right to disconnect policy, which could include the following clauses:

• Core Hours of Availability: Define regular work hours for work-related communications.
• Response Timeframes: Set clear expectations for responding to communications, including emails and telephone calls, to protect personal life.
• Exceptions: When are communications outside of working hours justified (e.g., emergencies)?
• Scheduling Tools: Promote tools to schedule emails for the next working day, reducing after-hours pressure.

Lead by Example

Employers should also encourage their management to model the behaviour they are seeking:

• Don’t send communications, including emails and telephone calls, outside regular work hours or during paid time off.
• Use scheduling tools to align work-related communications, including messages, with working days.
• Promote a culture of work-life balance and mental health.

Overtime Rules for Remote Employees

Employers must ensure that employees working from home track work time accurately:

• When can employees disconnect from work to protect personal life?
• Unapproved overtime may result in discipline per the Employment Standards Act.
• Ensure wage compliance to avoid disputes under the Canada Labour Code.

Legal advice can simplify these policies, reducing exposure to claims.

Flexibility with Structure

Offer flexible hours for remote work, but enforce accountability for work time. Clear boundaries on communications outside of working hours prevent overwork. Employment law expertise can customize these frameworks for your business.

Why Employers Need a Right to Disconnect Policy

A “right to disconnect policy” is a business tool to avoid employment law risks and boost productivity. In remote work settings, unchecked work time destroys mental health, increases turnover.

Surveys show that such policies attract talent by prioritizing work-life balance. Employees want workplaces that respect their personal lives and prioritize their health and safety. By setting clear boundaries for work-related communications, including emails, you can reduce burnout and increase focus during core working hours. For remote employees where personal life and work overlap, this is crucial.

Maximizing Productivity in Core Hours

Instead of relying on constant communication, you should optimize productivity during core hours. Tools like scheduling and clear protocols help remote employees stay productive. Training managers to respect core hours and not send after-hours work-related communications, including calls, reinforces the right to disconnect policy.

Right to Disconnect Policy: Thoughts and Conclusion

Employers should carefully consider an employee’s work hours, including an employee’s “availability,” and determine whether those hours may be excessive. You should also consider the legal and financial implications if their employees are experiencing burnout, constructive dismissal, or other claims.

Employers should consider adopting policies that provide employees the right to disconnect and then focus on methods that increase employee satisfaction and employee efficiency during normal work hours.

Contact our award-winning employment law team. Call 604-974-9529 to schedule a consultation. Our experienced lawyers specialize in protecting your business and ensuring compliance.