Ontario Publishes Updated Guidance for Employers on the Electronic Monitoring of Employee

On July 13, 2022, the Government of Ontario added a new chapter on the electronic monitoring of employees to its document “Your Guide to the Employment Standards Act”.

The updated guidance is per Bill 88, Working for Workers Act, 2022, which received Royal Assent and became law on April 8, 2022. Among other changes, Bill 88 amended Ontario’s Employment Standards Act, 2000 (ESA) to require certain employers to put a written policy in place regarding the electronic monitoring of employees.

Below, we summarize the Government’s updated guidance:

• Most employers in Ontario with 25 or more employees on January 1, 2022 have until October 11, 2022 to put a policy in place regarding electronic monitoring.
• Most employers in Ontario with 25 or more employees on January 1, 2023, and all subsequent years, have until March 1 of that year to put a policy in place regarding electronic monitoring.
• Electronic monitoring includes all forms of employee and assignment employee monitoring that is conducted electronically. This includes, but is not limited to:
• • devices or other electronic equipment issued by the employer
  • electronic monitoring that occurs while employees are at the workplace
  • electronic monitoring that occurs when the employee works from home
  • electronic monitoring that occurs when the employee is electronically monitored through their personal computer that they use for work purposes
• Certain employers in Ontario with 25 or more employees are exempt from the requirement to have a policy on the electronic monitoring. These include the Crown, a Crown agency or an authority, board, and commission or corporation whose members are all appointed by the Crown and their employees.
• If on January 1 of a given year an employer has fewer than 25 employees, but then during the year adds employees and consequently reaches the 25-minimum employee threshold, then that employer does not need to put a policy in place that year. However, if they have at least 25 employees the following January 1, then they must have a policy in place by March 1 of that year.
• If on January 1 of a given year an employer has more than 25 employees, but then before March 1 of that year they reduce staff and fall below the 25-minimum employee threshold, then that employer must still have a policy in place by March 1. However, if they have fewer than 25 employees the following January 1, then they do not have to put a policy in place by March 1 of that year.
• Employers must retain a copy of every policy required by the ESA for three years after the policy is no longer in effect.
• Employers do not need to provide a copy of the policy to employees each year if it has not changed from the previous year.
• Employers can provide the policy to employees in multiple ways, including:
• as a printed copy
• as an attachment to an email if the employee can print a copy
• as a link to an online document ink to the document online if the employee has a reasonable opportunity to access the document and a printer (and knows how to use them)
• New employees must be provided a copy of the policy within 30 days of being hired.
• For the purposes of counting employees to determine whether an employer meets the minimum 25-employee threshold, the definition of an employee includes:
• full-time employees
• part-time employees
• casual employees
• homeworkers
• probationary employees
• trainees (except interns who perform work under a program approved by a college of applied arts and technology or a university)
• officers of a corporation who perform work or supply services for wages
• employees on definite-term or specific-task contracts of any length
• employees who are on lay-off (provided that the employment relationship has not been terminated)
• employees who are on a leave of absence
• employees who are on strike or who are locked out
• employees who are exempt from the application of all or part(s) of the ESA (note: while these employees might not be covered by the electronic monitoring provisions of the ESA, they are included in the count to determine whether the employer employs at least 25 employees)

For example: on January 1, 2022, an employer has 11 full-time employees, 10 part-time employees, two casual employees, one employee who is on leave of absence, and one corporate officer who performs services in return for compensation. The total employee headcount is 25, which means that the employer must have a policy in place by October 11, 2022.

• Temporary employees are included in the headcount of the agency that employs them, and not the agency’s client where those workers provide labour.
• All employees employed at each location in Ontario must be included in the headcount. For example, if an employer has three locations, and each location has nine employees (per the definition noted above), then that employer must have a policy in place for all locations.
• The policy must clearly state whether or not the employer electronically monitors employees. If so, then the policy must include:
• a description of how and in what circumstances the employer may electronically monitor employees
• the purposes for which the information obtained through electronic monitoring may be used by the employer
• the date the policy was prepared
• the date any changes were made to the policy
• Employers are not required to have the same policy for all employees. It is acceptable to have multiple policies for different groups of employees. Multiple policies can be combined in a single document, or kept separate. Furthermore, one or multiple policies can also be part of a larger document such as a workplace HR policies and procedures manual.
• The policy (and its underlying legislation) do not establish new rights for employees not to be electronically monitored by their employer, nor do they establish any new privacy rights for employees.
• The ESA also does not limit the use of information obtained by employers through electronic monitoring. Employers are entitled to use such information for any reason, including to discipline or terminate an employee, or to support its position that the employee was guilty of willful misconduct, disobedience, or willful neglect of duty.
• Employees who allege that their employer has breached its obligation to provide a copy of the policy, or who allege that the policy is inadequate, can submit a complaint to the Ministry of Labour, Immigration, Training and Skills Development, or seek to have the matter investigated by an employment standards officer.

The Government of Ontario’s new chapter on the electronic monitoring of employees is available at: https://www.ontario.ca/document/your-guide-employment-standards-act-0/written-policy-electronic-monitoring-employees.