Ontario Government Provides Guidance On The New Disclosure Requirements For The Electronic Monitoring Of Employees

Further to our previous E-TIPS® articles on the Working for Workers Act, 2022 (the Act) found here and here, on July 12, 2022, Ontario’s Guide to the Employment Standards Act (the Guide) was updated to provide Ontario employers with guidance regarding the disclosure requirements for the electronic monitoring of employees that must be complied with by October 11, 2022.

Under the Act, employers that, as of January 1, 2022, have 25 or more employees, must have, no later than October 11, 2022, a written policy in place with respect to the electronic monitoring of their employees.  Although “electronic monitoring” is not defined in the Act, the Guide states that “electronic monitoring” includes all forms of employee and assignment employee monitoring that is done electronically.

The Guide provides that in determining the number of employees that an employer has, the employer must count each part-time employee and casual employee as one employee, regardless of the number of hours they work.  Also, the Guide is clear that when determining whether the 25-employee threshold has been met, only the employees of the employer that are employed in Ontario are counted.  The Guide further clarifies that assignment employees of temporary help agencies are employees of the temporary help agency, and are not the employees of the organization the employee is assigned to perform work for.

The Guide requires the written policy to apply to all of the employer’s employees in Ontario.  However, an employer is not required to have the same policy for all its employees. The employer can have a single policy that applies to all employees, or its policy can contain different policies for different groups of employees.

Under the Guide, the following elements must be included in the written policy:

1. A statement as to whether the employer engages in electronic monitoring of employees.  If the employer does not electronically monitor employees, the policy must explicitly state this.
2. If the employer electronically monitors employees, the policy must include: (i) a description of how the employer may electronically monitor employees; (ii) a description of the circumstances in which the employer may electronically monitor employees; and (iii) 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 changes were made to the policy.

The policy can be a stand-alone document or part of another document.  Employers must retain a copy of every written policy on electronic monitoring that was required by the Employment Standards Act for three years after the policy is no longer in effect.

For the full text of the Guide (including a helpful checklist), please click here.

Summary By: Olalekan (Wole) Akinremi