Pivotal HR Right to Disconnect

Budget 2024: Government Announces Plans to Introduce “Right to Disconnect” Legislation

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In its 2024 budget that was tabled in the House of Commons on March 16, the government of Canada signaled that it would introduce legislation that would give some workers a better shot at achieving an elusive work-life balance.

Proposed Right to Disconnect Legislation

If passed, the legislation would amend the Canada Labour Code and require employers in federally regulated industries to establish a right-to-disconnect policy limiting work-related communication outside of scheduled working hours.

Federally-regulated industries include the federal public sector; railways; airlines and airports; banks; postal services; most federal Crown corporations; radio and television broadcasting; and the telecommunication sector.

“One of the realities of life for all Canadians, but particularly for young Canadians, is this experience of being always on, always available. That’s not healthy. It’s not a good way to live,” commented Finance Minister Chrystia Freeland, who also added that she had Gen Zers in mind.

Overtime Trends

A report by ADP stated that Gen Z workers (generally viewed as those born between 1997-2013) work an average of 8.5 hours of unpaid overtime every week after hours, on lunch breaks and over the weekend. This is one hour more overtime compared with 45 to 54-year-old workers, and three more hours than workers 55 and older.

Still, Gen Zers — and all other workers in federally-related industries — who are eagerly looking forward to enjoying a measure of freedom from a seemingly non-stop barrage of work-related emails, phone calls, and texts should probably dial back their enthusiasm; or at least, play the (very) long game since there could be a significant gap between the new rules and how they apply in the real-world. Indeed, this has been a difficult — and for some, costly and painful — experience for some workers in Ontario, which introduced its own right-to-disconnect legislation in late 2021.

Criticism and Loopholes

“As it stands, the only thing that can happen under Ontario’s law is that a company can be held liable for not having a plan. In a sense, it presents as largely cosmetic,” said Fife Ogunde, a policy consultant for the government of Saskatchewan, who has published a paper in the Canadian Bar Review on the right to disconnect that concluded current labour laws are inadequate and toothless.

Other experts criticized Ontario’s right-to-disconnect rules as having broad loopholes. For example, an employer’s policy on disconnecting from work is only enforceable under the Employment Standard Act (ESA) if disconnecting from work does not create a greater benefit or right. In other words, if an employer legitimately believes and can provide some convincing evidence that workers who unplug outside of work come out behind rather than ahead, then the policy could be ignored.

“What they’re saying is, there’s no legal right to disconnect,” commented employment and labour lawyer Daniel Lublin. “The Ministry of Labour won’t do anything unless the employer created more than they needed to and refused to follow it. What employer would do that?”

Lublin also highlights a ridiculous, but potentially real scenario that an especially tactical employer could try: making the company’s right-to-disconnect window a minute or two in duration, say from 6:00 am to 6:02 am.

“As long as they don’t contact you between those two minutes, they’ve complied,” said Lublin. He added that some workers are afraid of exercising their right to disconnect because it could have negative consequences for their career: “The risk is still that they can decide that you’re more likely to be restructured than your colleague who says please feel free to contact me whenever.”

Uncertain Future

Another bleak possibility is that (not-yet-tabled) right-to-disconnect legislation for workers in federally regulated industries may never become a reality at all — even with giant loopholes, vague language, and potentially absurd use cases — if it does not receive Royal Assent in the House of Commons before MPs rise in June 2025, ahead of the federal election in October 2025.

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