New Guidance on Ontario’s Electronic Monitoring Policy

Back in April 2022, Ontario’s Bill 88, Working for Workers Act, 2022 became law in the province. Similar to its sister legislation, Bill 27, Working for Workers Act, 2021 that became law in December 2021, Bill 88 provides increased rights for many employees across Ontario and places new duties on employers.

One of the main amendments to the Ontario Employment Standards Act (ESA) brought on by Bill 88 is the requirement for many employers to implement an electronic monitoring policy within their workplace.

Part XI.1 of the Working for Workers Act, 2022 imposes a requirement on employers with 25 or more employees to have a written policy with respect to the electronic monitoring of employees. This law is now in force.

What is employee electronic monitoring?

While Bill 88 did not provide a definition of electronic monitoring, it can be interpreted as, “tracking employee location and/or activities through various electronic devices such as computers, cellphones, GPS systems, and more with the goal of ensuring that workers are being productive and performing the duties of their employment safely.”

Do you have to tell employees you are monitoring them?

The electronic monitoring policy must specifically state if the employer is electronically monitoring its employees. If the employee is engaging in electronic monitoring, the policy must provide a description of how and in what circumstances the employer is monitoring employees, as well as the purposes for which information obtained through electronic monitoring may be used by the employer.

Similar to the right to disconnect policy requirements brought on by Bill 27, Working for Workers Act, 2021, Bill 88 gave employers six months (that is until October 11, 2022) from the date it received Royal Assent (April 11, 2022) to implement the written electronic monitoring policy as a transition period. After the transition period (January 1, 2023), employers with 25 or more employees on January 1st of each year will have until March 1st of that year to implement the policy.

Lastly, Bill 88 states that employers must provide a dated copy of the policy to employees within 30 days of preparing the policy, or if an existing written policy is changed, within 30 days of the changes being made.

What’s the new guidance on Ontario’s electronic monitoring policy?

Through its online resource, Your guide to the Employment Standards Act, the Ontario government recently clarified that this new requirement does not establish a right for employees not to be electronically monitored by their employer, nor does it create any new privacy rights for employees. The government also provided a definition of “electronic monitoring” as stated below:

“Electronic monitoring” includes all forms of employee and assignment employee monitoring that is done electronically. Some examples include where an employer:

• Uses GPS to track the movement of an employee’s delivery vehicle;
• Uses an electronic sensor to track how quickly employees scan items at a grocery store check-out; or,
• Tracks the websites that employees visit during work hours.

Additionally, what is required to be captured in the employer’s policy is not limited to:

• Devices or other electronic equipment issued by the employer; or,
• Electronic monitoring that happens while employees are at the workplace.

For example, if an employee works from home and uses their personal computer or cellphone to complete their tasks, the employer can electronically monitor these personal devices for work purposes. However, the policy must inform the employee of this. To ensure the line between work and personal life is not crossed, employers may want to consider providing remote/hybrid employees with a work computer and/or cellphone if they engage in electronic monitoring.

The guidance also provides insight on how employers should count employees to reach the 25-employee threshold.

Employers must count the individual number of employees, not the number of “full-time equivalents.” This means that part-time employees and casual employees each count as one employee, regardless of the number of hours they work.

Additionally, for employers with multiple locations, all employees employed at each location in Ontario must be included when determining the number of employees. This also goes for employers who are deemed related employers under the ESA; if two or more employers are treated as one employer, then all employees employed in Ontario by these two or more employers are included in the count.

The electronic monitoring policy must apply to all of the employer’s employees in Ontario; this includes management, executives, and shareholders if they are governed by the ESA. This does not mean though that the employer is required to have the same policy for all employees. Employers can have a single policy apply to all staff, or different policies for each department or group of employees.

To ensure employers are fulfilling their obligations regarding electronic monitoring policies, it is useful to consult the following checklist provided by the Ministry:

1. Determine whether the employer is required to have a written policy in place (employers with 25+ employees).
2. If the employer is subject to the requirement, they must develop a written policy and ensure the policy:
3. a) Contains all required information
4. b) Applies to all of their employees and any assignment employees that perform work for them (the content of the policy does not need to be the same for all employees, but all  employees must be covered by the policy)
5. Is in place within the specified timeframe (October 11, 2022, and March 1st for all years after)
6. Provide a copy of the written policy to all employees and any assignment employees:
7. In the appropriate format (can be a printed copy, an attachment to an email if the employee can print a copy, or a link to the document online if the employee has a reasonable opportunity to access the document and a printer)
8. Within the required timeframe (within 30 calendar days of the day the employer is required to have  the policy in place, or the policy being changed)
9. Retain a copy of every written policy required by the ESA for three (3) years after the policy is no longer in effect.

Do you need help creating an electronic monitoring policy for your workplace?

With the legislation to implement electronic monitoring policies now in force, Ontario employers with 25+ employees should have the said policies in place to ensure ESA compliance.

Peninsula’s expert advisors can help you create an electronic monitoring policy for your business, and with any other HR, health & safety, or employee management matters that may arise. To learn more about how our services can benefit your business, call an expert today at 1 (833) 247-3652