New Guidance on Ontario's Electronic Monitoring in the Workplace Policy

As we discussed in our previous insight, Ontario Passes New Legislation Which Includes an Electronic Monitoring Policy and a New Act for Digital Workers, the Ontario government amended the Employment Standards Act, 2000 (the ESA) on April 11, 2022 to introduce a requirement that workplaces with 25 or more employees in Ontario create a written "electronic monitoring" policy (the Policy) by October 11, 2022.

On July 21, 2022, Ontario's Ministry of Labour, Training and Skills Development (the Ministry) provided updated guidance to aid employers in their understanding of what is required of them under this new law.

Employers With at Least 25 Employees in Ontario Must Have an Electronic Monitoring Policy

Although "electronic monitoring" is not defined in the ESA, the Ministry has noted that it includes all forms of employee monitoring that is done electronically. This may include using GPS systems to track employee movement, using sensors to track how quickly an employee performs a task or tracking the websites an employee visits during working hours.

Any employer that employs 25 or more employees in total across all of its locations in Ontario (as of January 1, 2022) will be required to have a written policy on electronically monitoring employees by October 11, 2022. Beginning in 2023, and each year thereafter, employers that employ 25 or more employees in Ontario on January 1 of that year must have a written Policy in place on or before March 1 of that year. Presumably, for employers who carry forward from year to year with more than 25 employees, the same policy will continue to apply from year to year unless revisions are made by the employer or required by law.

When determining whether the 25-employee threshold has been met, an employer must count all employees across all of its locations in Ontario, regardless of the number of hours worked by the employees or if they are full or part-time. This includes anyone who meets the definition of "employee" under the ESA, including probationary employees, employees on layoff, leave of absence or strike and employees who are trainees. An employer's employees outside of Ontario are not included in the count.

Policy Content Requirements

If an employer is required to have a Policy, the Policy may either be a stand-alone document or part of a more comprehensive set of employee rules and policies, such as an employee handbook or privacy policy. An employer may also have a single Policy applicable to all of its employees in Ontario, or a different Policy for different groups of employees. Regardless of approach, the Policy must include:

1. A statement as to whether or not the employer electronically monitors employees.
2. If the employer does electronically monitor employees, the Policy must describe:
   1. how the employer may electronically monitor employees;
   2. the circumstances in which the employer may electronically monitor employees; and
   3. the purposes for which information obtained through electronic monitoring may be used by the employer.
3. The date the Policy was prepared, and the date any revisions were made.
4. Any other information as may be prescribed.

The scope and content of a Policy will therefore vary by employer depending on how each employer monitors its employees. For clarity, even if an employer does not electronically monitor its employees, an employer who meets the 25-employee threshold is still required to have a written Policy (albeit a very simple policy), stating that it does not electronically monitor its employees (and any other prescribed information).

Using Information Collected Through Electronic Monitoring

The Ministry has clarified that the obligation to have a Policy does not translate to providing employees with a right to privacy or affect or limit an employer's otherwise lawful ability to use the information obtained through electronic monitoring. Rather, the requirement is simply that employers must be transparent about whether or not they electronically monitor employees.

The Ministry has also clarified that electronic monitoring for the purposes of the Policy is not limited to the devices or monitoring equipment issued by the employer, or electronic monitoring that happens while employees are on-site at a workplace. This means that if an employer electronically monitors its employees through the employees' own personal devices or when the employee is working from home or on the road, this must be stated in the Policy.

The ESA also does not limit the employer's use of the information gathered through monitoring to the purposes stated in the Policy. For example, an employer can rely on the information collected through electronic monitoring to discipline or terminate an employee, including to support a position that an employee is being terminated due to wilful misconduct, disobedience, or wilful neglect of duty that is not trivial and has not been condoned by the employer, even if this purpose is not stated in the Policy.  

Employer Disclosure and Record Keeping Requirements

Employers must provide a copy of the Policy to employees, and assignment employees who work for them, in Ontario within 30 calendar days after the Policy is prepared or changed.  

Employers must also provide a copy of the Policy to new hires in Ontario within 30 calendar days after hire.

An employer can provide a copy of the Policy to employees as: (a) a printed copy, (b) an attachment to an email if the employee is able to print, or (c) a link to the Policy online if the employee has a reasonable opportunity to access the Policy and is able to print it.

Lastly, employers must retain a copy of every written Policy for three years after the Policy is no longer in effect.

Complaints

An employee may file a complaint with the Ministry, or initiate an investigation by an employment standards officer, only when the employee alleges that the employer has failed to provide a copy of the Policy within the required timelines, as set out above. Complaints regarding any other contravention of the Policy cannot be made, or investigated by, an employment standards officer.

Key Takeaways

Employers with 25 or more employees in Ontario as of January 1, 2022 should immediately start considering what their "Electronic Monitoring" Policy will look like ahead of the October 11, 2022 deadline for implementation. As a starting point, employers should review what, if any, electronic monitoring is being done, which will help inform the contents of the Policy, including the purpose for collection.