The “right to disconnect”: Will employees be able to “pull the plug”?

Antoine Guilmain and Paul Côté-Lépine, The “right to disconnect”: Will employees be able to “pull the plug”?, Bulletin Fasken, April 2018.

Bill 1097: Right-to-Disconnect Act (the « Bill« ) was introduced by Québec Solidaire MNA and spokesperson Gabriel Nadeau-Dubois on March 22, 2018 but was overshadowed by the introduction of Bill 176 (Act to amend the Act respecting labour standards and other legislative provisions mainly to facilitate family-work balance). The purpose of this bulletin is to provide an outline of the Bill and identify potential issues for employers.

Purpose

The Bill is largely inspired by legislation that has been in force in France since January 1, 2017. Its stated objective is to ensure that employee rest periods are respected, by requiring employers to adopt an after-hours disconnection policy.

What Bill 1907 primarily requires of employers is that they establish an after-hours disconnection policy that must determine, at a minimum:

• the weekly periods when employees are entitled to disconnect from all work-related communications; and
• the protocol for use of communication tools after hours.

Employers with 100 or more employees

For companies with 100 or more employees, the disconnection policy must be developed by a joint committee of at least six persons, at least half of whom represent the employees. In a unionized environment, employee representatives are to be designated by the certified association or associations of employees, where an association is present.

In the event of disagreement regarding the content of the policy, an employer representative or employee representative may apply to the Commission des normes, de l’équité et de la santé et la sécurité du travail (“CNESST”) to designate a mediator. If the mediation fails, the CNESST may dictate the content of the policy in question.

No later than March 31 of each year, the employer will be required to report on the use of the communication tool and on the application of the after-hours disconnection policy, in addition to submitting the assessment to the committee members.

Employers with fewer than 100 employees

In the case of companies with fewer than 100 employees, after consulting the employees or their representatives, the employer develops the disconnection policy.

The policy will first be submitted to the CNESST for validation and approval. The CNESST may then ask the employer to modify it.

Every employer with fewer than 100 employees must review its disconnection policy at least every two years and resubmit it to the CNESST for approval.

Sanctions

The Bill also contains penal provisions that apply to contraventions. Under those provisions, employers are guilty and liable to a fine if they

• fail to develop a disconnection policy; or
• fail to produce an assessment of their policy (for employers with 100 or more employees).

It is also worth pointing out that the Bill provides that the CNESST may institute penal proceedings at its own initiative against the employer.

Possible exemption

The Bill provides that employers may ask the CNESST to be exempted from adopting a policy for some or all of their employees if they can prove that the employees in question do not use communication tools after hours in the course of their duties.

Issues

Although the Bill’s objectives may seem legitimate at first sight, one may wonder whether it might interfere with the development and modernization of workplaces in Québec, which are characterized by, among other things, the breakup of the traditional format, that is, physical presence in a specific place. For example, how would a disconnection policy be applied as the role of teleworking in the Québec labour market continues to grow?

Another consideration is whether imposing a disconnection policy would throw up a significant barrier to certain measures intended to facilitate work-family balance. For example, some employers allow employees to leave early so they are able to meet some of their family obligations and then resume their work activities later in the evening.

In short, the effect of implementing a disconnection policy could be to encourage the culture of presenteeism (or face time) at the expense of efficiency and new ways of working, in addition to putting more pressure on employees who are tied to stricter work schedules. In addition, although Bill 1097 allows for certain exemptions, we must recognize that each employer’s circumstances are different when it comes to the use of communication tools (depending on the industry, number of employees, type of clientele, whether the business is international, etc.), and the Bill does not take those variables into consideration.

Following the Bill’s progress will be very interesting as will be analyzing any real-world repercussions it may have.

Ce contenu a été mis à jour le 7 avril 2018 à 18 h 26 min.