On April 11, 2022 new requirements for reporting the electronic monitoring of employees were added to the Employment Standards Act, 2000 (“ESA”). By October 11, 2022, employers with 25 or more employees must have a written policy on electronic monitoring. The 25-employee threshold is based on the number of employees as of January 1, 2022.
What is electronic monitoring?
Electronic monitoring occurs when electronic data is collected from employees. For example, employers can track the use of:
- computers and cellphones, including e-mails, website browsing, online chats, keystrokes, and cameras;
- GPS to track the movement of vehicles and other equipment; and
- electronic sensors to track items scanned in stores, offices, and warehouses.
Who counts as an employee?
For the purposes of determining whether an employer has 25 employees, all employees count.
This includes employees that are:
- On a definite term or specific task contracts of any length;
- On a leave of absence;
- On strike;
- On a lay-off, as long as the employment relationship persists; and
- Exempt from all or parts of the ESA – although the ESA may not apply to these employees, they are included in the count for the purposes of determining the employee count.
If an employer has multiple locations in Ontario, the combined total number of employees in all locations determines whether the 25-employee threshold is met.
What does the written policy need to include?
The purpose of the written policy on electronic monitoring is to ensure that employers are being transparent with their employees under what circumstances electronic monitoring may occur.
As such, the policy must first state whether or not the employer monitors their employees electronically.
If no, this must be stated explicitly. If yes, the employer must specify:
- how and when the employer electronically monitors their employees;
- what information is collected and for what purposes; and
- the date of the written policy and the date of any change.
When does the written policy need to be developed by?
The number of employees for the purposes of the 25-employee threshold is counted on the 1st day of January each year. In 2022, the written policy must be developed by October 11, 2022.
Starting in 2023, the written policy must be developed before March 1 of that year.
What if the number of employees change throughout the year?
If an employer has 25 or more employees on January 1st and this number decreases, the employer is required to maintain the written policy for the rest of the year. If an employer has fewer than 25 employees on January 1st and this number increases to 25 or more throughout the year, the employer will not be required to develop a written policy until the following year, provided that they maintain 25 employees by the following January 1st.
Does the written policy have to be the same for all employees?
No, the written policy does not need to be the same for all employees. An employer may choose to have the same policy for all employees or have different policies for different groups of employees. The written policy may be a standalone document or part of another document.
Does the employer need to keep records of the written policy?
Yes, the ESA requires that employers keep a copy of every written policy for at least three years after it is no longer in effect.
Does the employer need to provide a copy of the written policy to their employees?
Yes, once a written policy is developed, a copy of the policy must be provided to all employees as a printed copy. If the employee has access to internet and a printer, the employer may also provide it as an attachment to an email or as a link to an online copy.
A copy must be provided to employees within 30 calendar days of the:
- requirement to have the policy in place; or
- employee’s hire date; or
- any policy change.
Since employers are required to have a written policy by October 11, 2022 this year, employers must provide a copy to their employees by November 10, 2022. Beginning in 2023, the employer must provide a copy to their employees before April 1 of that year. If an employee is hired after these dates, the employer must provide them with a copy of the written policy within 30 calendar days of their hire date. Lastly, if there are any changes made to the policy, the employer must provide a copy of the amended policy to the employees affected by those changes within 30 calendar days.
The following may be a useful guide for employers when creating a written policy.
- Did you have 25 or more employees as of January 1 this year? Did your count include all types of employees at all locations?
- Do you electronically monitor your employees?
- Will your written policy:
- include all the required information including a statement of whether or not employees are monitored electronically, the circumstances of monitoring, what information is collected and for what purposes, and the date of the policy and any changes;
- apply to all of your employees or differently to for different groups of employees;
- be developed by October 11, 2022 (if after 2023, by March 1 of the current year)?
- Will a copy of the written policy be provided to your employees by the required deadlines?
- Are you keeping records of all written policies for at least three years after the policy is no longer in effect?
About the Author:
Eric Kay (Partner, Toronto), is a partner in the firm’s Toronto office and is a member of the labor and employment department. To contact Eric, email him at EKay@dickinsonwright.com.