Canadian HR Reporter

www.hrreporter.com 11 can't necessarily tell who is calling — it could be no call display or 'unknown number,'" he says. "What's the reason for the call? Is the workplace such where there could be calls of an urgent nature? Will the employer be prohibited from telephoning the employee?" For some categories of workers, paying for overtime doesn't apply, and this would also have to be considered for this kind of legislation to work, says Sambi. "In the Employment Standards Act [ESA] in Ontario, there's a provision that says employers must give their employees at least 11 consecutive hours off from performing work in each day. [The right to disconnect] is something similar in the sense that an employee can't be expected to work 24/7, and they can't be expected to be online and accessible to their employers 24/7. You need to give them that 11-hour break. But the provision doesn't apply to everyone — there are certain professions that are exempted from this portion of the ESA: lawyers, architects, engineers, accountants; they're all exempted." Canada's law might end up mirroring job security? It could be a protective factor; for others, it could be an inhibitor." Such an idea may gain traction, but it will depend on "how it's couched," says Howatt. "I could see some employers might raise a flag; some employers may embrace it." The right to disconnect has been done unilaterally by at least one company, says Tanya Sambi, associate lawyer at Minken Employment Law in Markham, Ont. "Volkswagen introduced a policy to prevent servers from sending out emails outside of core business hours. They didn't have to do it — there was no legislation that required them to do this; they just did it on their own, so it's possible other employers are doing it in Canada, absent any legislation." Potential challenges to right to disconnect It will also be tricky to police and put into place a right to disconnect, says Ronald Minken, founder and managing principal at Minken Employment Lawyers, espe- cially if a call comes in after hours. "What happens if the employee answers the phone? Upon learning it's the employer, do they hang up? You what happened in France in 2017, when the country passed its version of a right-to-disconnect law, says Sambi. "Employees have the right to not work — which includes responding to work communications such as emails — during their rest periods and during their leaves of absence, and so it's likely we' ll probably implement something similar to that." But right now, it would only involve federally regulated employers, she says. "It could be introduced in Canada, but that doesn't necessarily mean that prov- incially regulated employers will have to abide by it." Take time away In the meantime, employers should get ahead of the situation and work on ways to ensure employees get a proper amount of time away from work. "Remove assumptions around deliver- ables," says Howatt, citing as an example a leader who says "I need it now" when they actually don't need a response right away. Managers should also insist that employees take time away from work, such as vacation time, says Sambi. "You say you're going to turn off the internet, the emails — is that infringing on people's rights to create flexibility?" Bill Howatt, Howatt HR "Right now, in lockdown, nobody's going anywhere, you're not really allowed to travel, and so employees might feel like, 'Well, I'm not wasting my vacation time just sitting at home, especially with the stay-at-home order,'" she says. "But that's not really the purpose of vaca- tion time; it's to take time away from work to recover and recuperate, so insisting that an employee takes their vacation time is one great way to ensure that they don't overwork themselves." CHRR

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