The Employment Standards Act, 2000, “ESA” has been amended to require that Ontario employers create an electronic monitoring policy per the requirements of Bill 88, Working for Workers Act, 2022. The amendment to the ESA, and the specific provisions can be found under section 41.1.1.
The legislation mandating this requirement states that the policies shall be put in place as of October 11, 2022. The requirement for this policy only applies to employers who have 25 or more employees as of that date. On a going forward basis, if an employer has 25 or more employees on January 1st of any year, the employer will be required to ensure it has a written policy in place by March of that same year. The 25-employee threshold is based on employees within Ontario, and it is not dependent on a specific location. For example, those employers who have multiple locations but in aggregate have over 25 employees, will need to have a policy in place.
It is important to note that the requirements do not establish a right for employees not to be electronically monitored by their employer. It also does not create any new privacy rights for employees. The basis of the implementation of the policy, is to require that employers be more transparent about whether they monitor their employees, or not. If so, under what circumstances and what the information will be used for.
What are the requirements of the electronic monitoring policy?
The policy must contain the following information for the employees:
- Whether the employer electronically monitors the employees and if they do:
- A description of how and in what circumstances the employer may electronically monitor employees; and
- The purpose for which information obtained through monitoring may be used by the employer.
- The date the policy was prepared and the date changes were made to the policy.
The employer will need to provide the written policy to employees within 30 days from the date the employer is required to have the policy in place. Where any changes are made to the policy, the employer will need to provide the policy within 30 days of any changes.
For new employees, the employer will be required to provide it to those employees within 30 days of the commencement of their employment.
What constitutes electronic monitoring?
The Ministry of Labour has outlined electronic monitoring as all forms of employee monitoring that is done electronically. The following is a non-exhaustive list of examples:
- GPS usage to track movement of a delivery vehicle;
- Electronic sensors to track how quickly employees scan items;
- Tracking websites that employees visit;
- Tracking building pass swipes;
- Tracking e-mail accounts;
- Software that provides information to employers about the employee’s work; and
- Phone systems that track usage.
It is notable that the policy for electronic monitoring is not only with respect to assigned devices by the employer, but also to the extent that an employer is able to electronically monitor the employee on their own devices. Where monitoring is occurring with respect to the employee’s own devices via software, this must be included within the electronic monitoring policy.
Important considerations for your monitoring policy
There are a few important considerations for employers to go through in respect of whether this electronic policy needs to be done, and whether it actually applies to them:
- Are you an employer with greater than 25 employees?
- Have you properly counted all of your employees including assigned employees?
- If you are an employer with greater than 25 employees, do you electronically monitor them?
- If you do not monitor them, you are still required to have a policy – but what is included will be different;
- If you do monitor your employees, how are you doing it? What is the purpose?
- Do you think that you will have 25 or more employees as of January 1st the following year, if so consider creating a policy now?