PLUGGING INTO THE RIGHT TO DISCONNECT: 5 FAQs

By Anne Amos-Stewart & Maddy Sequeira

The COVID-19 pandemic drove remote work to unprecedented heights.

Employee calls for greater flexibility and cost savings for employers, like rent and overhead, have resulted in remote work arrangements remaining in place. But along with those arrangements comes the challenge of separating work and non-work time, and employee demands for a “right to disconnect”. To help all employers stay plugged in, here are the answers to five key questions about the right to disconnect.

1. What is the “right to disconnect”?

Generally, it’s about employees disconnecting from work and not engaging in work-related communications, like emails, outside of working hours. Numerous European countries have adopted disconnecting from work legislation, and in December 2021, the European Parliament adopted a resolution calling for a European Union law on the right to disconnect. Calls for right-to-disconnect legislation are now being heard in Canada.

2. Have any Canadian jurisdictions legislated a “right to disconnect”?

No. Ontario has however legislated in the area of disconnecting from work. Effective January 1, 2022, the Ontario Employment Standards Act, 2000 requires certain employers to have a written policy on “disconnecting from work”. To date, Ontario is the only Canadian jurisdiction with “disconnecting from work” legislation. Importantly, however, the Ontario legislation does not create any rights for employees to disconnect from work.

3. Why is it important for all Canadian employers – not just Ontario employers – to be plugged into the “right to disconnect”?

There are several reasons why all Canadian employers are wise to stay plugged into the right to disconnect:

Future Legislation. Indications are that other Canadian jurisdictions are currently considering right-to-disconnect legislation, and more could follow; it’s important that employers be ready for what could be coming. For example:

» Prince Edward Island’s September 2022 interim report published in connection with its ongoing comprehensive review of the Employment Standards Act includes a discussion about “Telework and the Right to Disconnect”, suggesting a legislated right to disconnect could be coming down the pike in Prince Edward Island.

» Quebec’s December 2021 Bill 799, Right to Disconnect Act, if passed, would require employers to develop a clear disconnection policy. While Quebec has had right to disconnect legislation on the table in prior years, none of which passed, this might be the right time for it.

» The federal government’s February 2022 Final Report of the Right to Disconnect Advisory Committee concluded, “[a] legislative right to disconnect is the only way to effectively move forward with addressing the negative impacts of hyper-connectivity in the workplace and to effectively manage the use of workplace communications devices”, suggesting the federal government could bring forward a plan to include a right to disconnect policy for federally-regulated employees (such as those in the banking and the telecommunications sectors, for example).

Ontario Employees. Employers must typically comply with the laws of the jurisdiction in which an employee works. If an employer in another province or territory has employees who physically work in Ontario, it’s likely they must comply with Ontario’s disconnecting from work legislation in relation to those employees – though the employer can, if it wishes, only do so in relation to its Ontario employees.

Retain & Recruit. A voluntary “disconnecting from work” policy – one the employer chooses to implement, even though it’s not required to do so – could be an effective employee retention and recruitment tool. As a result of COVID-19, many employers have transitioned to a remote work or hybrid model, blurring the line between home life and work life. When competition for talent is high, a voluntary “disconnecting-from-work” policy signals to both current and prospective employees that an employer is willing to assist employees with balancing their home and work lives. Indeed, more workers of all ages are placing increased value on work-life balance when selecting an employer.

4. What might employers expect to see in “right-to-disconnect” legislation?

Ontario’s “disconnecting from work” legislation offers a useful indicator of what employers might be able to expect in similar legislation elsewhere in Canada, at least initially.

Mandatory Policy. All provincially-regulated employers with 25 or more “employees” must adopt a written policy on “disconnecting from work” and provide all employees with a copy. The legislation doesn’t, however, require the employer to have the same policy for all employees; while it can, the policy can also dictate different terms for different groups of employees.

Definition. The Ontario legislation defines “disconnecting from work” as “not engaging in work-related communications, including emails, telephone calls, video calls or sending or reviewing other messages, so as to be free from the performance of work.” It’s important to note, however, that what the Ontario legislation doesn’t do is create any new rights for employees to “disconnect from work”. In particular, it doesn’t:

» Prohibit employers from communicating with employees after working hours.

» Specify that it’s a right of employees to disconnect from work or be free from the obligation to engage in work-related communications completely after a certain time or after typical “work” hours.

“Employees” Covered. The policy applies to all of the employer’s “employees” covered by the Ontario Employment Standards Act, 2000. The Act defines “employees” to include those who are part-time, full-time, flex-time, casual, fixedterm, on leave, on layoff, suspended, probationary and on strike/lockout, and some trainees and some students. Management, executives, and shareholders are also included if they otherwise meet the definition of “employee”. Independent contractors are excluded.

The COVID-19 pandemic drove remote work to unprecedented heights. Employee calls for greater flexibility, and cost savings for employers, like rent and overhead, have resulted in remote work arrangements remaining in place. But along with those arrangements comes the challenge of separating work and nonwork time, and employee demands for a “right to disconnect”.

Policy Contents. The Ontario legislation only specifies that the employer must include the date the policy was prepared and the date it made any changes to the policy. Beyond this, the legislation doesn’t dictate what the employer must include in the policy. It does leave open the possibility that the province can prescribe that the policy contain specified information, presumably by regulation.

5. What should a “disconnecting-from-work” policy look like?

A “disconnecting-from-work” policy can be a standalone document, or the employer can incorporate it into another of its policies. When drafting the policy, employers must ensure it complies with the applicable employment standards legislation, such as rules limiting hours of work. In addition to the basics that every good policy should include, a “disconnecting from work” policy could (and should, for some employers) generally address these topics:

After Hours Work. What are the employer’s expectations, if any, of employees to read or reply to work-related emails or answer work-related phone calls after hours?

Response Times. What are the required response times, and how might they change for different times of day, subject matter of the communication, sender, and so on? For example, are response times different for communications:

» Relating to urgent vs. non-urgent matters?

» Received from a colleague, a supervisor or a customer/client?

Application. To which employees does the policy apply, in the case of a voluntary policy, and what expectations apply to which employees? For example, since in Ontario managerial employees are generally exempt from the hours of work rules under its Employment Standards Act, 2000, an employer might want to establish greater obligations for managers to respond to after-hours communications than for non-managerial employees. Also, with more companies permitting flexible work hours, an employer might allow some employees to choose when they work, provided they complete their tasks. Different rights and obligations under the policy could be appropriate for these employees.

OOO Notifications. Are employees expected to activate appropriate out-of-office notifications, such as email messages and voicemails, during times when the employee isn’t responding to communications?

This article is information only; it is not legal advice. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2022. All rights reserved.

Ontario Quebec

The Mississauga Board of Trade (MBOT) is calling on the new council to revisit previous decisions by local elected officials to prohibit cannabis retailers in the community, a matter that’s been reviewed and voted on twice, resulting in the absense of such storefronts in Mississauga. The most recent rejection came in June 2021 with a majority of council voting against the stores, 8-4.

With respect to the current labour dispute, as of late December, the SQDC had 92 branches, more than half of which are non-unionized, and 68 were open according to the regular schedule. The current labour dispute affects only 24 of the 26 branches represented by CUPE. To date, the main point in dispute with CUPE remains that of salary, since all the normative elements have been settled for a few months. In addition, since last December 20, the employees of seven of the 17 branches represented by the Confederation of National Trade Unions (CSN) will enter the second year of their collective agreement and their hourly rate will increase to $19.39/h at Starter. The employees of the 59 other branches will also gradually reach an hourly rate of $19.39/h on entry over the next few months.

Manitoba Saskatchewan

Delta 9 Cannabis announced it is temporarily laying off about 40 employees in a push to bolster its struggling cultivation and wholesale outfits. The company said in a news release in mid-January the move is part of a plan to streamline cultivation operations and capacity at its Winnipeg facilities, as well as reduce company and investor costs.

OEG Retail Cannabis (OEGRC) has completed its acquisition of 23 Tweed and Tokyo Smoke stores from Canopy Growth Corporation (CGC) in Manitoba, Saskatchewan, and Newfoundland and Labrador. In addition to the retail locations, OEGRC has also acquired the Tokyo Smoke brand from Canopy Growth. OEGRC is now the sole owner of the Tokyo Smoke brand and trademark.

Alberta British Columbia

Alberta Gaming, Liquor, and Cannabis (AGLC) recently launched the Find Your Moderation program as part of its ongoing CannabisSense campaign, with two videos intended to highlight that cannabis can affect consumers differently. The AGLC’s CannabisSense launched in January 2022 with the goal of providing Albertans with information and resources related to non-medical cannabis.

Canada’s largest private-sector liquor and cannabis retailer has completed a deal to acquire The Valens Company, a B.C.-based developer and manufacturer of cannabinoid-based products. First announced in August 2022, the transaction includes $138 million in SNDL shares and the assumption of Valens’ $60 million non-revolving term loan facility, Alberta-based SNDL noted in a press release.

In mid-January, the government of British Columbia found overall support for adult-use marijuana consumption spaces among cannabis users and businesses in a 2022 public consultation, while non-users and “some public health and safety organizations (and) local governments” expressed opposition. The B.C. government “is now considering whether cannabis consumption spaces should be permitted,” according to a report released Tuesday. Among random phone survey respondents interviewed in April and May 2022, 61% supported consumption spaces. Of the 730 telephone survey respondents, 35% had used cannabis at least once in the past year.

Cann Bliss Beverages Inc. became one of a handful of recipients of PEI’s Ignition Fund, a $25,000 for businesses operating in the province. Cann Bliss Beverages Inc. has created the first ever cannabis-infused non-alcoholic wine products in Canada that are enjoyable and of precise dosage. The beverages are produced in both red and white flavors and at various THC and CBD levels. The wine beverages provide the right amount of THC and CBD to offer a sensible and satisfying substitute for people seeking alcohol-free products. The Ignition Fund program has funded 80 companies since it launched in 2014.

Nova Scotia

Creso Pharma Ltd. says its wholly-owned Canadian subsidiary Mernova Medicinal Inc. will list seven new products in Nova Scotia to be sold through the Nova Scotia Liquor Corporation (NSLC). This doubles Mernova’s total listings in the province from seven stock-keeping units (SKU) to 14 SKUs and demonstrates the company’s ability to further penetrate the company’s largest market from a revenue perspective (based on Q1 to Q3 2022).

Prince Edward Island Newfoundland & Labrador New Brunswick

According to a recent CBC article, a production facility in the White Hills area that was built for Canopy Growth has been sitting idle for two years. The 230,000-square-foot cannabis production facility was built in 2017, in anticipation of the legalization of recreational marijuana in Canada, the Ontario-based company promised to produce 8,000 kilograms of cannabis annually in the east end of St. John’s. But in 2020, Canopy announced its plans had changed. The almost 150 jobs the facility was expected to create in Newfoundland vanished.

New Brunswick finance minister Ernie Steeves announced after serious losses by Crown REC corporation Cannabis NB, the government is now looking for private operators to bid to take over selling and distributing REC throughout New Brunswick. Official bids for the private cannabis stores opened until January 10. As per The Financial Post, the Conservative government does not want to break the Cannabis NB monopoly up and sell each of the provincial stores to a different operator. Instead, it is looking for a single operator to take over the whole organization.

Yukon / Northwest Territories / Nunavut

As of late October, the Yukon’s cannabis licensees now operate all retail locations, online sales and delivery. As of today, the Yukon Liquor Corporation’s Cannabis Yukon website will no longer sell cannabis products to Yukoners, leaving cannabis e-commerce to private licensees. There are currently six licensed cannabis retailers open in the Yukon and one federally licensed producer. / January saw National Non-Smoking Week. The annual event provides education and information to prevent youth and young adults from starting to use tobacco products and helps existing tobacco consumers to quit or limit their intake.

For those who prefer ‘em a little bit taller, this original collection all-star is one of our best sellers. It’s designed for the experienced consumer who also happens to enjoy showing off their impressive lung capacity. Purchase today at redeyetek.ca. Wholesale available at westcoast.gifts.

From our original collection of modern day miracles, this gorgeous, tall drink of bong water (don’t) is ready for your finest flower. We predict that it will become your favourite so quickly you’ll think it’s surgically attached to your mouth. Purchase today at redeyetek.ca. Wholesale available at westcoast.gifts.

Specifically designed for isolating hazardous materials, the HAZMAX Containment Work Area is engineered to isolate applications including large equipment distillation procedures, pilot plant requirements, and sampling/ weighing/dispensing operations. Protection from hazardous fumes is ensured by the varaflow baffle system and by-pass inlets, to safely vent vapours, odors and powders for maximum work safety. The ventilated work area is constructed of corrosion resistant composite resin surface panels. Tempered glass horizontal sliding door panels provide convenient access to the work area. Vapour proof or explosion proof lighting is provided. A secondary containment basin, constructed of seamless composite polyresin, has coved corners and a sloped bottom to facilitate draining and cleaning of any accidental spillage. A raised fiberglass grate deck floor allows spillage to flow through. Specific requirements can be met through a variety of safety and service accessories, also available HEMCO. Call (800) 7794362 or visit www.HEMCOcorp. comm/unimax.html

TetraBase™ from Hydra Unlimited® is the last hydroponic media growers will ever need. Clean and reusable, the new professional-grade product is engineered for exceptional highyield performance in deep water culture systems such as Hydra Unlimited’s pioneering HydraMax™. And now, the innovative media is offered in a smaller, more affordable one-litre bag. Unlike traditional clay media, advanced TetraBase won’t introduce dust and debris into a system that can clog fittings and jam pumps. Non-porous and pHneutral, it doesn’t attract and harbor pests or promote bacterial growth. Non-abrasive, it can be handled without gloves and is far easier to move than water-soaked clay media. The clay used in traditional hydroponic culture is typically mined. Eco-friendly TetraBase is made from 100% recycled materials. Ideal for a trial run of a single 5-1/2″ to 6″ net pot, a one-liter bag of Hydra Unlimited TetraBase costs $15.99 US; a six-litre bag covers six net pots and is $89.

TriPlaneTM luminaire LED Grow Lighting

As the first luminaire in the ParFX™ product family, the TriPlane leverages the best features of LED and HID technologies—high light output, controlled distribution, optimized efficiencies, and exceptional thermal management. With a light output of 2100 μmol/s and an efficacy of 3.2 μmol/J, the TriPlane sets a new standard for LED horticultural lighting as a true 1-for-1 replacement of the 1000W HID luminaire. Designed for maximum flexibility, the TriPlane’s LED modules can be adjusted independently in precise increments in either direction— allowing for highly customed light distribution, depending on the application. Delivering optimum color efficiencies, the TriPlane is available in two spectral recipes, which can be used in standalone LED applications, or in combination with HID luminaires for hybrid applications. A standard horticultural power connector and intuitive mounting brackets allow for a true plug-and-play retrofit of existing HID lighting installations.

Margaret Brodie was appointed Interim CEO of Rubicon Organics in early January. Ms. Brodie has been CFO of Rubicon since inception in 2015 and been an active member of the management team and board through growth of the organization. Margaret Brodie began her career at KPMG and spent the majority of her 10 years with KPMG in London, UK focused on global mining and drinks companies. Before joining Rubicon Organics, she was CFO for several publicly listed mining companies. Ms Brodie was recognized as a finalist by BC Business in 2020 for its Entrepreneurial Leader of the Year. She has been involved with several not-for-profit organizations and the Status of Women Canada. Ms. Brodie holds a B. Comm. from UBC, holds the CPA, CA designation and is a member of the Institute of Corporate Directors.

In early January Fire & Flower Holdings Corp., a leading cannabis consumer retail and technology platform announced that it has appointed John Chou as the Chief Financial Officer of the Company. The appointment of Mr. Chou as the permanent Chief Financial Officer follows his appointment as interim Chief Financial Officer on November 21, 2022. Prior to joining Fire & Flower management as Chief Financial Officer, Mr. Chou held the position of Chief Financial Officer of The Flowr Corporation, Chief Financial Officer of Terrace Global, Vice President Finance of Gran Colombia Gold Corp. and Vice President Finance of Frontera Energy Corp.