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Howard Levitt: The lines have blurred between home and work, but a ‘right-to-disconnect’ law is ludicrous

By June 14, 2021 No Comments
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Employers are entitled to demand quality work, even hard work — even if that means demanding employees be available at the drop of a hat

A culture shift has taken place. Fuelled by their experience with remote work, many employees have the myopic belief they are entitled to personalized work arrangements. They expect both flexibility and stability.

An unfortunate symptom of this trend is the recently resurfaced argument that Canada should enshrine in our legal system a “right to disconnect.” Federal Labour Minister Filomena Tassi is leading a charge on a potential right to disconnect policy in Canada. Several European countries have enacted such legislation.

The concept is not new. The federal government has been considering it for years. Quebec tabled a similar bill in 2018, which, unsurprisingly, was never approved.

This “right” entails sweeping restrictions on the use of digital tools outside of working hours. It would protect employees from reprisal if they refuse to be online outside of regular work hours, regardless of their reasons.

The concept is ludicrous. Such a law would be costly, impossible to put into practice, and have extremely deleterious effects on most businesses. And it could not be implemented without overhauling the entire labour law regime.

Federal workplace law has only recently been subject to drastic, costly changes aimed at legislating so-called work-life balance. Chief among these changes was the right to request “flexible” work arrangements such as changes to hours, work schedule and location. We opined on the repercussions of these amendments in 2019, noting then that these changes would lead to increased friction in the workplace as employers sought to balance the resulting inefficiencies with their operational needs. That was prophetic.

Federal and provincial labour laws already provide extensive protections to employees respecting working hours and rest periods. Throughout Canada, working hours are capped for most employees. Periods of rest and leave are guaranteed. But our laws also recognize that each industry has its own unique requirements to remain operational and competitive.

In our own profession in Ontario, we are exempt from laws regulating hours of work, daily and weekly rest periods, time off between shifts, eating periods and overtime pay. We are even exempt from sick leave if taking it would compromise our professional responsibilities. And yet, rarely does one see individuals in the legal profession being denied basic rights such as fair wages, rest periods and offline time. Any company denying those entitlements would have a hard time recruiting and maintaining its workforce.

A right-to-disconnect law makes even less sense if flexible remote work remains the status quo. Employees cannot have it both ways: The freedom to pop over to the grocery store or walk their dog during work hours, but not answer an urgent email on a Sunday evening. They want the autonomy to determine their hours but neglect to consider that it is the employer’s right to determine how the business is run.

Employers are entitled to demand quality work, even hard work. And they are entitled to require employees to facilitate the company’s needs, even if that means demanding employees be available at the drop of a hat.

Even in the unlikely, unfortunate event that a right-to-disconnect is legislated, it will not supplant employer rights. Rather, it will reinforce them. Employers will no doubt increase their focus on productivity during “online” hours. They will closely scrutinize each missed call and email. That walk to the grocery store during work hours might come with the risk of discipline or termination.

Proponents of the right to disconnect should be careful in assuming that such a change will inure to their benefit.

Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com.

Howard Levitt is senior partner of LSCS Law, employment and labour lawyers. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Katherine Golobic is with LSCS Law.