February 14, 2022
Joel Gomes

The Right To Disconnect

February 14, 2022
Joel Gomes

The pandemic has ushered in new forms of work with work from home becoming a norm. At least 98% of employees around the world are expected to continue working from home till at least March 2022, with some employers announcing that their staff will permanently work from home – being used as a talent retention and attraction option. Developments like these, herald a new era for job design, and talent management, while raising key considerations for digital security, Health & Safety and procedural policies in organizations.

It is not wrong to say that most people love the flexibility that work from home offers. Working in a flexible environment can be liberating. It gives an employee a sense of ownership over one’s schedule. However, excessive demands of work may impinge on personal time and push the otherwise relieved worker into a high-stress territory. Staying connected round the clock has started taking a toll on workers. Research findings show that after months of homeworking, employees are now showing signs of fatigue, burnout, depression and health disorders. The boundary between work and home life has become blurred, leading to excessive encroachment in people’s private lives.

When a manager or employer communicates with staff outside working hours, they are sometimes uncertain what is expected of them. Are they supposed to respond immediately? Can it wait until they are at work? Will they be paid for the time they spend responding(working)? Will it impact their career growth if they don’t respond? An employee may even, in more extreme circumstances, feel harassed because of the volume or complexity of the communications and their intrusion into their personal time. In response to these concerns, we’ve witnessed an increasing number of class action lawsuits claiming millions of dollars in unpaid overtime.

Several countries in Europe already have some form of right to disconnect. In August 2016, France became a trendsetter when it introduced the “El Khomri” law, proposed by the then labour minister Myriam El Khomri, in support of the right to disconnect. Italy has incorporated a similar right regarding employee’s obligation to communicate beyond office hours. In Spain and Germany, companies are adopting disconnect policies. Volkswagen was first in implementing a company-wide freeze on emails back in 2012. The company actually set its internal servers to not route email to individual accounts between 6.15 pm and 7 am. Lawmakers in UK too have proposed the idea of giving employees the right to disconnect. Irish employees’ ‘right to disconnect’ was enshrined in their code of practice in April 2021 and the demand is picking up steam in the US as well.

In Ontario, Royal Assent obtained on December 2, 2021 for Bill 27 – the Working for Workers Act,2021. It amends a number of employment and labour related statutes in the Employment Standards Act (ESA) including legislating a “right to disconnect” for employees.

Employers that employ 25 or more employees as of January 1st in any year must have a written policy with respect to “disconnecting from work”, before March 1st of that year.  “Disconnecting from work” means not engaging in work-related communications including emails, telephone calls, video calls or text messages.  

Despite the March 1st deadline, employers will have six (6) months from December 2nd (June 2, 2022) to implement the policy. A copy of the policy must be provided to employees within 30 days of preparing it. New employees must receive the policy within 30 days of starting employment.  

The legislation does not provide additional guidance in relation to the content of the policy, which affords employers some degree of flexibility. The ESA does not specify allowable exemptions, which suggests that the employer can create reasonable exemptions based on the nature of their operations. Such exemptions may include emergency situations and carve outs for management staff.

How Companies Can Support Their Employees With The “Right To Disconnect”:

·        Set reasonable Company Standards – Check feasibility of creating a company policy that prohibits sending emails, texts, calls, etc. after 5pm or before 9am. Results can potentially be quite positive with respect to productivity and staff retention

·        Mark the End of the Work Day – Good practice for companies to mark and state the official end of the work day/shift. Gives employees permission to stop working and validates their day.

·        Utilize Communication Tools – may be a good idea to encourage using company sponsored calendar or schedule. In most calendar apps, there are settings that allow you to set your work hours. If someone tries to schedule a meeting with you outside of those work hours, they are informed that you may not be available. The technology auto-declines meetings so you never have to say no.

·        Honor Vacation Days – Encourage all employees to review all open items and ensure appropriate coverage or delegation before going on vacation. This way, nothing falls through the cracks, and frees the employee from feeling the need to check in.

·        Set Clear Boundaries – Encourage employees to NOT bring their work laptop or work cellphone when on vacation. An out of office can be effectively employed to let peers & partners know that the person will not be available during that week, and have no access to email or applications.

·        Follow A Set Routine - In the morning, try not to look at my phone until you’ve done a personal or spiritual routine. On Sunday evenings, try to exercise some self-care - put aside the laptop and phone, take a warm bath, and don't look at them again until Monday morning. These routines give you space to get your thoughts together and relaxing before plugging back in.

·        Lead by Example - Leaders & HR can set the standard by disconnecting themselves. The first step is to not respond to emails after hours and definitely don't send them! Encourage this same behavior from middle managers and staff. Take time to stop and think about whether or not something needs to be communicated immediately or if it can wait until morning. We can change this idea of 24/7 connection if we communicate expectations and encourage staff to disconnect. Be the change you want to see

·        Practice Empathy - HR can encourage employees to disconnect with work after hours by being empathetic and transparent. Research connects working longer hours to absenteeism and employee turnover, so HR should communicate and guide employees to set boundaries during their off time.

·        Sign Off from Personal Devices - Personal devices keep us connected to work 24/7. Encourage employees to not sync any business emails or work accounts to their own devices. It is very tempting to check a work email that pops up on your phone, and a simple notification can be a gateway to multiple emails. For some, this is not possible, so at least set aside an hour or two to unplug.

It’s important to consider that not all of the points above to any single organization and a “one-size-fits-all” company policy approach, especially actions such as inhibiting access to email accounts, can be potentially detrimental as they don’t consider the flexibility that some people or roles may want or need. That’s not going to be very helpful for people who have different lives, who have different responsibilities, and who may need to be much more flexible in their work. But the intended spirit of what the company is trying to achieve is what will build your company culture and improve loyalty and retention.

To avoid unintended overtime claims and harassment complaints and to protect the psychological health and safety of employees, it is worth reviewing your company policies. In doing so, employers should consider:

·        whether your policies and practices comply with minimum standards regarding hours of work and overtime, and

·        whether to create some kind of “right to disconnect” policy, or at least some parameters around expectations for monitoring devices outside business hours, which may vary depending on the employee’s role and level within the organization and their eligibility for overtime.

If you’re a Beneplan client, and you require assistance with planning, guidance on developing and for sample templates to build an effective “Right to Disconnect” policy, or if you would like to discuss help with your human resources needs, please email Beneplan's complimentary HR consultant for clients, via email at hr@beneplan.ca or via phone at 416 863 6718.

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