New Guidance on Ontario’s Mandatory Electronic Monitoring Policy

Earlier this year, the government legislated a mandatory electronic monitoring policy for Ontario employers, requiring disclosure of electronic monitoring of employees (the “Policy”).

Recently a guidance document was released to help employers understand their obligations and how to craft and implement the Policy. Here are the highlights:

Which Workplaces Require the Policy?

Employers with 25+ employees in Ontario as of January 1, 2022 will be required to roll out a Policy by no later than October 11, 2022. In subsequent years employers with 25+ employees in Ontario as of January 1 of each year will be required to roll out a Policy no later than March 1 of that year.

Who is Considered to be an “Employee”?

“Employees”, for the purposes of determining the requirement to have and maintain a
Policy, are the following:

homeworkers
probationary employees
some trainees
officers of a corporation who perform work or supply services for wages
employees on fixed term or specific task contracts
employees who are on lay-off, leave of absence, strike, or locked-out
employees who are exempt from the application of all or part of the ESA such as
architects, lawyers, accountants, engineers, etc. (NOTE: although these employees
may not be covered by the electronic monitoring provisions of the ESA, they are
included in the count to determine whether the employer employs at least 25
employees)
Assignment employees of temporary help agencies.

Policy Requirements

Employers are required to make a statement as to whether they engage in electronic monitoring of employees or not. Where an employer does engage in electronic monitoring of its employees, the Policy must contain:

A description of how the employer monitors employees or may monitor employees.
A description of the circumstances in which the employer may monitor employees.
The purposes for which the information obtained through electronic monitoring
may be used by the employer.

The Policy must apply to all employees, but the employer can have different policies for different employees as it sees fit.

The timeframe for providing employees with the Policy are as follows:

within 30 days of the day the Policy is required to be in place; or
within 30 days of the Policy being changed; or
within 30 days of a new employee starting work; or
if the employer employs assignment employees, within 24 hours of the start of the
assignment.

The Policy must be kept for a minimum of 3 years after it is no longer in effect.

Use of Information Collected Through Electronic Monitoring

The guidance document is explicit that the requirement for an electronic monitoring policy does not in any way limit or affect an employer’s ability to use information obtained through electronic monitoring.

Moreover, even if the employer states in their Policy that they are using electronic monitoring for a specific purpose (i.e. training), but end up using that information in a different way (i.e. for disciplinary purposes), the legislation does not prohibit the undisclosed use of the information.

Employer Checklist for Creating a Policy

Below is the Government’s checklist for creating a Policy:
☐ Determine whether you are required to have a written policy in place.

☐If you are subject to the requirement, develop a written policy and ensure the policy:

☐ contains all required information
☐ applies to all of your employees and any assignment employees that perform work for you (the content of the policy does not need to be the
same for all groups of employees, though all employees must be covered by the policy)
☐ is in place within the specified timeframe (for 2022, the policy must be in place by October 11, 2022. For all other years, the policy must be in place by March 1 of that year)

☐ Provide a copy of the written policy to all of your employees and any assignment employees assigned to perform work for you:

☐ in the appropriate format
☐ within the required timeframe
☐ Retain a copy of every written policy required by the ESA for 3 years after the policy is no longer in effect.

To read the entire guidance document on the written policy on electronic monitoring of employees, please follow this link.

Below is the Government’s checklist for creating a Policy:
☐ Determine whether you are required to have a written policy in place.

☐If you are subject to the requirement, develop a written policy and ensure the policy:

☐ contains all required information
☐ applies to all of your employees and any assignment employees that perform work for you (the content of the policy does not need to be the
same for all groups of employees, though all employees must be covered by the policy)
☐ is in place within the specified timeframe (for 2022, the policy must be in place by October 11, 2022. For all other years, the policy must be in place by March 1 of that year)

☐ Provide a copy of the written policy to all of your employees and any assignment employees assigned to perform work for you:

☐ in the appropriate format
☐ within the required timeframe
☐ Retain a copy of every written policy required by the ESA for 3 years after the policy is no longer in effect.

To read the entire guidance document on the written policy on electronic monitoring of employees, please follow this link.

If you are an employer who is or will be required to craft and implement an electronic monitoring policy, we can assist you to do so.

About the Author

Ljubica Durlovska is an Employment Lawyer at HRC Law Professional Corporation. With a passion for employment and labour law, she has spent many years helping employers with a wide range of workplace issues, including assisting clients with employment contracts, discipline, investigations, policy development, accommodation, termination, and employment-related human rights and health & safety matters. Ljubica also has previous experience in corporate/commercial law and leasing.

Contact Ljubica at: ldurlovska@hrcemploymentlaw.com