Ontario Employers: Prepare for Employee Monitoring Rules effective October 2022

Earlier in 2022, Ontario’s provincial government announced new legislation which will require certain employers to have a written policy on electronic monitoring. Under these rules, which were introduced with Bill 88, the Working for Workers Act, 2022 (the “Act”), relevant employers will be required to provide information on whether the employer electronically monitors its workers.

For those employers who do monitor workers, the Act amends the Ontario Employment Standards Act and imposes requirements for an employer policy which:

(1) describes how and in what circumstances workers are monitored;

(2) discloses the purpose of collecting, by way of electronic monitoring; and

(3) explains how employee use of technology and devices (computers, cell phones, GPS or other electronic equipment) is tracked.

Any such policy also needs to also set out the day when the policy was prepared, together with the date when any changes were made to the policy. These requirements can take the form or a new policy or a change to an existing employer policy.

These requirements will apply to provincially-regulated employers in Ontario with 25 or more employees. The rules will apply to employees who work in a workplace, together with anyone who works in the field or from home.

Employers covered by these rules who had 25 or more employees on January 1, 2022 must have this policy in place by October 11, 2022, and then provide a written copy of the policy to employees by November 10, 2022. For subsequent years, Ontario employers who have 25 or more employees on January 1 of any year must have the policy in place by March 1 of that years.

The Act requires that employers must provide a written copy of the policy to all employees within 30 days from the later of: (a) the day the employer is required to have the policy in place (for existing employees); or (b) within 30 days of a new employee’s joining date; or (c) with 24 hours of an assignment date (for employees working on an assignment from a temporary help agency).

Employees are given rights under the new legislation to proceed with a complaint to the Ontario Ministry of Labour if they claim that an employer has not complied with the Act. Any such complaint could include a failure to provide the relevant employee with a copy of the required policy in a timely manner.

Takeaway For Employers

These new requirements, which are part of a series of workplace law changes adopted by Ontario’s current provincial government, do not expressly impact or limit an employer’s ability to engage in electronic monitoring of employees or new employee rights relating to privacy or protections against being monitored are established. Instead, the stated purpose of the legislation is to put employees on notice about what practices the employer engages in. This should also not change the legal position regarding an employer’s right or ability to rely  upon information obtained via electronic monitoring of employees. However, as with the recent new rules in Ontario regarding the Right to Disconnect from work, the adoption of these rules and the requirement for a policy and notice to employees about employee monitoring is likely to bring increased scrutiny on what approaches an employer follows. It is not yet clear whether there will be a corresponding reaction from employees as a result.