With the rise of online meetings, digital knowledge management and the necessary software, there came the ability to work anywhere, anytime. This often leads to the expectation to work everywhere, all the time. Such an ‘always-on’ work culture can have a negative impact on the employees’ mental health since they do not get enough time to recover from work.
To avoid this, France was the first country to introduce a right to disconnect in 2017 with its El Khomri law. Spain, Portugal and other countries followed soon after. By now, even Kenya has introduced a right to disconnect. In December 2021, Ontario became the first Canadian province to do so. However, proposals for a similar law in Quebec as well as in New York City failed.
Based on the Ontario example, this blog post will review current commentaries on the right to disconnect, its purpose and effectiveness, uncovering the original need for the law as well as its shortcomings.
The Ontario Right to Disconnect
With Bill 27, effective as of December 2nd, 2021, Ontario introduced a right to disconnect into the Ontario Employment Standards Act. Sec. 21.1.1 defines ‘disconnecting from work’ as “not engaging in work-related communications, including emails, telephone calls, video calls or sending or reviewing other messages, to be free from the performance of work“. Under the amended law, employers that have 25 or more employees on January 1 of any year are required to have a written policy on how, when and to what extent their employees can disconnect from work. The only exception applies to employees of the Crown, a Crown agency or an authority, board, commission or corporation whose members are all appointed by the Crown and their employees.
Mapping the Contemporary Debate
For the Ontario law, the written policy is required to provide transparency and accountability. However, the law does not prescribe what the content of the policy should be. A policy may specify when an employee does not need to answer work-related emails or calls and when they do, but it may also provide exceptions, e.g., for important clients. According to the Toronto-based employment lawyer Deborah Hudson, the law only stipulates that a written policy must exist.
David Doorey, a professor of work law at York University, finds the terminology of a ‘right’ to disconnect misleading since the change in the law did not bring any new rights for employees. There are no consequences for employers that are reaching out to their employees after hours, he notes. Agreeing with Doorey, Monkhouse Law employment lawyers note that there is neither an enforcement mechanism, nor any protection for employees who want to exercise their right to disconnect. Their concern is that there remains the risk of being passed over for promotion if some exercise the right to disconnect while others don’t.
Meanwhile, there is general agreement among legal and business scholars that some form of regulation is needed to address the risks associated with an ‘always-on’ culture. One form of the right to disconnect is shown in the Ontario concept of giving companies the chance to design their own regulation to which they adhere. However, Tammy Katsabian, a postdoctoral fellow at Harvard Law School, describes two potential solutions of regulation that completely oppose each other: One is the return to a classic concept of working time, where there is a restricted work schedule. The employee works only within assigned hours and is paid only for that work. The other model is a more flexible one, which assumes that work can be done at any time and in any place and therefore should be performed without regard to the role of time in labour law. Katsabian recognizes that neither the strict nor the flexible model addresses today’s work reality, because the concepts ignore either the increasing role of digital technology or the purpose of labour rights. As a possible remedy, Katsabian proposes that basic safeguards should be in place to protect employees. This would uphold the principle that they deserve to be paid for the time worked and receive legitimate breaks throughout the workday.
Tanya Marcum and Elizabeth Cameron, business professors at Bradley University Peoria, Illinois, and Alma College Michigan, agree with Katsabian’s idea of the need for basic rules. Such rules would, for example, stipulate that employees hired on an hourly basis must be paid for every hour they work, that personal time must be respected and that work-life boundaries have to be ensured. They state that it is up to companies to take proactive measures to prevent off-the-clock work.
Looking beyond Ontario, we find the debate around the right to disconnect equally lively. For example, the 2021 Eurofound Research Report sympathizes with the proposed approach, which it refers to as ‘soft’. Tina Weber and Oscar Vargas Llave, the report’s authors, note that the soft approach differs from a hard approach in the way that companies have some leeway to reach out to their employees during certain time periods. Both employees and managers take responsibility for preventing overconnection and extended working hours that can result from remote work. To achieve this, they recommend several key steps, including raising awareness of the potential risks of constant connectivity, providing training and managing out-of-hours communication.
Why the Right to Disconnect Has Initially Been Contemplated
As with the European right-to-disconnect regulations, it is clear why the Ontario law was introduced. Remote work and constant reachability through smartphones and laptops existed before COVID-19 but inevitably increased during and after the pandemic. The line between work and home became increasingly blurred, in particular in remote jobs, making it difficult to switch off from work. In fact, home-based teleworkers are twice as likely to work in their free time as employees working onsite, the already mentioned Eurofound Research Report found out.
The discussion on the right of disconnect can similarly be found in many jurisdictions. A 2022 Australian study examined its underlying reasons. It shows that 71% of workers surveyed have worked outside of their scheduled working hours. 38% reported that the overtime was expected at their workplaces. Workers experienced the effects of overtime work such as physical fatigue (35%), stress and anxiety (32%) and mental exhaustion (31%). In addition, the employees indicated that overtime interfered with their personal lived (27%) and for 17% it resulted in disrupted or unfulfilling non-work time. 84% of workers surveyed would support the introduction of a right to disconnect. In a 2017 U.K. study, 77% of the participants agreed that the U.K. should introduce a right to disconnect. A 2021 survey polling employees and HR leaders from Australia, Canada, the U.K. and the U.S. shows that the sentiment in these countries regarding the mental health level does not differ much from the results of the aforementioned studies.
According to the Canadian psychotherapist Nicholas Balaisis, a right to disconnect aims to protect the employee’s mental well-being and prevent unproductivity and ultimately burnout. A frequently offered justification for this right is that it would prevent managers from unilaterally making their employees work overtime, paid or unpaid, Balaisis states.
At first sight, a right to disconnect might seem to decrease the firm’s productivity since employers are unavailable at some times of the day. This, however, is likely balanced out by the general increase of working time due to less sick days and employees being more committed to their work.
A right to disconnect can lead to employees feeling better and being happier at the workplace. These are factors that research on quiet quitting names as the main reasons for employees only working with minimum effort. In fact, quiet quitters are still performing their duties but are not as committed to the work they are doing and thus only work the bare minimum. A rise of the employees’ happiness might therefore increase their work mentality and thus lead to higher productivity.
The honorable Monte McNaughton, the Ontario labour minister that introduced the law, confirms this conclusion by claiming that the right to disconnect was issued in employer’s best interests. It makes employers more attractive when employees can be sure that they do not need to expect any calls after having closed their laptops, he believes.
What Still Remains to Be Solved
An interesting question is whether a right to disconnect actually works. Some commentators have speculated that employees who want to make use of their right will be left out of interesting or time-consuming projects or the next promotion. The purpose of the law can easily be circumvented by giving other reasons to justify the decision. While the Ontario law does not yet provide a solution to this, commentators are arguing that this needs to be ensured in a next round of revision.
From the employers’ perspective, the right to disconnect can lead to a lack of flexibility in work schedules since communication between workers is restricted. In adverse cases, an employee that disconnected from work because of their midday run or because they finish work earlier can be needed to make an important decision that can cause serious financial damages to the company if not decided immediately. On the other hand, it is a question of workplace organization and knowledge management to avoid situations like that.
When it comes to people and their needs, there is rarely a one-size-fits-all solution. The Ontario right to disconnect is an attempt to acknowledge the diverse demands of employees as well as concerns about mental health. Despite its shortcomings, a right to disconnect recognizes the reality in today’s workplaces. Thus, a right to disconnect is a step toward greater employee rights in an increasingly digital workplace. Even though it is still deficient in terms of clarity and enforceability, it is a step in the right direction that can lead to more impactful and employee-friendly legislation. Some even see it as a stepping stone toward a federal introduction under the Canada Labour Code. Now, more steps need be taken in Ontario by refining the law in order to make it effective in terms of employee protection.