The Right to Disconnect: Ontario's Law and Its Actual Teeth

The Promise and the Reality

On December 2, 2021, Ontario's Working for Workers Act, 2021 (Bill 27) received Royal Assent. Among its provisions was a new section 21.1 of the Employment Standards Act, 2000 (ESA), which required employers with 25 or more employees to have a written policy with respect to "disconnecting from work."

The media coverage was enthusiastic. "Ontario Workers Win Right to Disconnect." "New Law Protects Employees from After-Hours Emails." "Ontario Follows France with Disconnect Legislation." The framing was consistent: Ontario had recognized that the boundary between work and personal life had eroded, and the government was stepping in to restore it.

The reality is considerably more modest. To understand why, you need to read the actual text of the legislation — something that, based on the public commentary, very few people have done.

What the Law Actually Says

Section 21.1(1) of the ESA provides:

An employer that, on January 1 of any year, employs 25 or more employees shall, before March 1 of that year, ensure it has a written policy for all employees of the employer with respect to disconnecting from work.

Section 21.1(2) defines "disconnecting from work" as:

Not engaging in work-related communications, including emails, telephone calls, video calls, or the sending or reviewing of other messages, so as to be free from the performance of work.

Section 21.1(3) provides that the policy must include the date it was prepared and the date any changes were made to the policy, and may contain any other content the employer considers appropriate.

That is the entirety of the substantive provision. Read it carefully, because what it does not say is as important as what it does.

What the Law Does

Requires a written policy. Employers with 25 or more employees must have a policy about disconnecting from work. The policy must be in writing, must be provided to each employee within 30 days of the policy being prepared (for existing employees) or within 30 days of the employee's start date (for new employees), and must include the dates it was prepared and last modified.

Defines "disconnecting from work." The definition establishes what disconnecting means — not engaging in work-related communications. This definition is relevant because it establishes the subject matter that the policy must address.

Creates an enforcement mechanism. The Ministry of Labour can issue compliance orders against employers that fail to have a policy or fail to provide copies to employees. An employer that does not comply with the policy requirement can face penalties under the ESA's enforcement regime.

What the Law Does Not Do

Does not create a right to disconnect. This is the critical point. The legislation requires a policy. It does not require the policy to grant employees any right to refuse after-hours communications. It does not prohibit employers from expecting availability outside business hours. It does not create any individual right for an employee to stop working at a particular time.

Does not prescribe the content of the policy. Section 21.1(3) provides that the policy "may contain any other content the employer considers appropriate." The statute imposes no minimum content requirement beyond the preparation and amendment dates. An employer has complete discretion over what the policy says.

Does not restrict after-hours communications. Nothing in the provision prohibits an employer from sending emails, making calls, or assigning work outside regular business hours. Nothing prevents an employer from expecting employees to respond to those communications promptly.

Does not provide individual remedies. An employee who is disciplined for not responding to a weekend email has no claim under section 21.1. The provision creates an obligation for the employer to have a policy — not an obligation to comply with that policy, and not an individual right for the employee to enforce it.

Does not apply to small employers. Employers with fewer than 25 employees are entirely exempt. This excludes a significant portion of the Ontario workforce — approximately 30 percent of private sector employees work for employers with fewer than 20 employees.

What Employer Policies Actually Say

Because the statute does not prescribe policy content, employer policies vary dramatically. Having reviewed numerous disconnect policies since the provision came into force, they generally fall into three categories:

Category 1: Aspirational but Non-Binding

These policies express the employer's commitment to work-life balance and encourage managers to respect employees' personal time. They use language like "employees are encouraged to disconnect" and "managers should make reasonable efforts to avoid contacting employees outside business hours unless urgent."

This category is the most common among large employers. The policy reads well, signals corporate values, and imposes no actual obligation on anyone. The word "encouraged" does significant lifting — it communicates a preference without creating a rule.

Category 2: Operational Carve-Outs

These policies acknowledge the principle of disconnection but carve out broad exceptions for "operational needs," "client-facing roles," "on-call responsibilities," "time-sensitive matters," and similar categories. The exceptions are often so broad that they swallow the rule.

A typical policy in this category might read: "Employees are generally not expected to engage in work-related communications outside their regular working hours, except where operational needs require it, where the employee is in an on-call rotation, where a client or customer matter requires urgent attention, or where the employee's role involves responsibilities in multiple time zones."

For an employee in a professional services firm, a technology company, or any client-facing role, every one of these exceptions may apply simultaneously. The "right to disconnect" becomes the right to disconnect when there is nothing to do — which is no right at all.

Category 3: Explicit Availability Expectations

Some employers have used the disconnect policy requirement as an opportunity to formalize their expectations of after-hours availability. These policies explicitly state that certain roles require availability outside business hours and that employees in those roles are expected to respond to communications within a specified timeframe.

This category of policy is technically compliant with the statute — the employer has a policy about disconnecting from work, and the policy describes the circumstances in which employees are expected to be available. The fact that the policy effectively creates an obligation to remain connected rather than a right to disconnect is not a violation of the statute, because the statute does not require the policy to protect disconnection.

The International Comparison

Ontario's approach looks particularly weak when compared to disconnect legislation in other jurisdictions.

France

France's El Khomri law (Loi Travail), enacted in 2016 and effective January 1, 2017, requires employers with 50 or more employees to negotiate with employee representatives on the right to disconnect. If negotiations fail, the employer must adopt a charter defining the right to disconnect and the company's training and awareness-raising measures. The French approach creates a substantive obligation to negotiate and implement measures that protect disconnection — not just to have a policy.

French courts have enforced the right to disconnect in practice. In a notable 2018 decision, a French court awarded damages to an employee who was expected to keep their phone on at all times to receive after-hours calls, finding that the expectation constituted an infringement of the right to rest.

Portugal

In 2021, Portugal amended its Labour Code to prohibit employers from contacting employees outside working hours except in situations of force majeure. The prohibition is backed by penalties. Portuguese employers cannot require employees to remain available outside their working hours, and contacting an employee outside working hours without justification constitutes a labour violation.

Belgium

Belgium's disconnect legislation, effective February 1, 2022, requires employers in the public sector and companies with more than 20 employees to implement the right to disconnect through collective agreements, workplace regulations, or company-level agreements. The Belgian approach, like the French approach, creates substantive obligations — not just a policy requirement.

Ontario

Ontario's provision requires a policy. The policy can say anything. There are no penalties for the content of the policy. There is no individual right for the employee. There is no obligation to negotiate. There is no restriction on after-hours communications.

The comparison is not flattering.

Why the Policy-Only Approach Fails

The fundamental problem with Ontario's approach is that it relies on voluntary employer action to address a structural problem that exists because of the imbalance of power between employers and employees.

The power imbalance. In most employment relationships, the employer sets the terms. The employee can negotiate at the point of hiring but has limited leverage once employed. An employee who objects to after-hours availability expectations risks being seen as uncommitted, uncooperative, or not a team player. These perceptions have real consequences for performance reviews, promotions, and continued employment.

A policy that "encourages" disconnection but does not require it leaves the employee in exactly the same position they were in before the policy existed. The cultural expectation of availability persists. The employee who disconnects does so at their own career risk.

The collective action problem. Even if individual employees would prefer to disconnect, no individual employee wants to be the one who disconnects while their colleagues remain available. Disconnection requires collective action — either through negotiation (as in the French model) or through regulation (as in the Portuguese model). Ontario's policy-only approach does not solve the collective action problem because it does not create a common standard that applies to everyone.

The information asymmetry. Most employees do not read their employer's disconnect policy. Most employees who have read it do not understand its legal significance — or lack thereof. The legislation's branding as a "right to disconnect" creates a false belief that the policy protects them. Employees who believe they are protected do not take the steps that might actually provide protection — negotiating contractual terms, documenting excessive after-hours demands, or filing complaints.

What Would Meaningful Disconnect Legislation Look Like?

A disconnect provision with genuine teeth would include some or all of the following elements:

A substantive right. The legislation would create an actual right for employees to refuse work-related communications outside their regular working hours, subject to defined exceptions (genuine emergencies, on-call arrangements agreed to in the employment contract, etc.).

Restrictions on employer contact. The legislation would prohibit employers from initiating non-emergency work-related communications outside the employee's regular working hours. The burden would be on the employer to justify after-hours contact, not on the employee to justify non-responsiveness.

Anti-retaliation protection. The legislation would explicitly prohibit employers from retaliating against employees who exercise their right to disconnect. This would include protection against discipline, negative performance reviews, denial of promotions, and termination.

Individual remedies. Employees would have the right to file complaints with the Ministry of Labour if their disconnect rights are violated, with meaningful penalties for non-compliance.

Negotiation obligation. Employers would be required to negotiate the terms of disconnection with employees or their representatives, as in the French model. This would ensure that disconnect arrangements reflect the realities of the specific workplace and industry.

Coverage of small employers. The legislation would apply to all employers, not just those with 25 or more employees. The need to disconnect from work does not depend on the size of the employer.

The Practical Impact

Despite its limitations, Ontario's disconnect provision has had some practical impact — though not the impact the legislation's proponents intended.

Awareness. The provision has raised awareness of the issue of work-life boundary erosion. The public conversation about disconnection, prompted by the legislation, has encouraged some employees to assert boundaries that they might not have asserted otherwise. This is a cultural benefit, even if it has no legal force.

Employer attention. The requirement to have a policy has forced some employers to think about after-hours expectations for the first time. In some organizations, the process of drafting the policy revealed that the organization had no clear norms about after-hours work — and that different managers had dramatically different expectations. The policy process, in these cases, prompted internal conversations that might not have happened otherwise.

Litigation risk awareness. Employment lawyers have noted that the disconnect provision, while not creating individual rights, has heightened employer awareness of the litigation risks associated with excessive after-hours demands. An employer that expects constant availability but has adopted a policy that "encourages" disconnection creates a tension that could be relevant in constructive dismissal litigation — particularly if the employer's actual expectations differ dramatically from the policy's stated principles.

What You Can Actually Do

If you are an Ontario employee who wants to establish boundaries around after-hours work, the disconnect provision is not your tool. Here is what might actually help:

Negotiate contractual terms. At the point of hiring, negotiate specific terms about after-hours availability. A contractual provision that specifies your regular working hours and states that you are not required to be available outside those hours (except in defined circumstances) provides more protection than any statutory policy.

Document excessive demands. If your employer expects constant after-hours availability despite a disconnect policy that says otherwise, document the demands. Keep records of after-hours emails, calls, and messages. Note the frequency, the time of day, and whether the matters were genuinely urgent. This documentation may be relevant if you later claim constructive dismissal based on changed working conditions.

Raise concerns in writing. If the after-hours demands are affecting your health or well-being, raise the concern in writing to your manager or HR. A written record of your concerns — and the employer's response — establishes a factual foundation that may be useful later.

Know your overtime rights. If you are not exempt from the ESA's overtime provisions, after-hours work may entitle you to overtime pay. Ontario's ESA requires overtime pay (at 1.5 times the regular rate) for hours worked in excess of 44 per week, unless the employee has agreed in writing to an averaging arrangement. An employer that expects after-hours responsiveness may be creating overtime liability that it has not considered.

Understand the limits. The right to disconnect, as enacted in Ontario, is a disclosure requirement — nothing more. Understanding this is the first step toward taking actions that actually protect your time and well-being, rather than relying on a statutory provision that does not.

The Road Ahead

Ontario's disconnect provision is best understood as a political marker — a signal that the government recognizes the problem of work-life boundary erosion, without a commitment to the regulatory tools that would address it. The provision may be a stepping stone toward more substantive legislation, as it was in France, where early voluntary measures gave way to binding obligations. Or it may remain where it is — a policy requirement that employers satisfy annually and employees rarely read.

The broader trend, internationally, is toward substantive disconnect rights. The European Union has considered continent-wide disconnect legislation. Australia enacted a right to disconnect effective August 26, 2024 — legislation that creates an actual right for employees to refuse unreasonable contact outside working hours. As these models develop and produce outcomes, the pressure on Ontario to move beyond a policy-only approach will increase.

For now, the right to disconnect in Ontario is a right in name and a policy in practice. The distance between those two things is where your actual protections need to be built — and that building is something you have to do yourself.