Employer’s Guide to Ontario’s New Electronic Monitoring Policy Requirement
Important news for employers. Under recent amendments to the Employment Standards Act, 2000 (ESA), employers with 25 or more employees must now have a written policy on the electronic monitoring of employees in place by October 11, 2022.
Unsure of what this means? In this brief guide, you will learn whether these new amendments apply to your organization and, if so, what you must do to comply with them.
Step 1 – Does Ontario’s new written electronic monitoring policy requirement apply to your organization?
There are two preliminary questions to ask that will determine whether Ontario’s new written electronic monitoring policy requirements will apply to your organization:
- Does your organization currently employ 25+ employees?
- Does your organization currently engage in “electronic monitoring”?
- a) Determining whether your organization currently employs 25+ employees
There are special rules that apply when calculating your employee count for the purposes of the new written electronic monitoring policy requirement. These rules are set out below:
Step 1 – Understand who an “employee” is for the purposes of this requirement
Any individual who meets the definition of “employee” under the ESA is to be included in your organization’s employee count.
This means that all full-time, part-time and casual employees are to be included in your organization’s employee count. The Ministry of Labour’s (the “Ministry”) guidelines also provide helpful examples of other types of individuals who will be considered employees for the purposes of this requirement (note that these are a few examples, and not an exhaustive list):
- probationary employees
- employees on definite or indefinite terms or specific task contracts of any length
- employees who are on a leave of absence
- employees who are on strike or who are locked-out
It is important to note that these are just a few examples and should not be interpreted as an exhaustive list.
Step 2 – Calculate your organization’s employee count
Your employee count is determined by reference to the total number of employees you employ on January 1 of the respective calendar year. Where an employer has multiple locations, their respective employee count is further determined by reference to the total number of employees employed at all locations. For example, if the employer operates two restaurants and 15 employees are employed in each restaurant as of January 1, then that employer will be deemed to have 30 employees for the purposes of the written electronic monitoring policy requirement.
Fluctuations in your employee count may also affect your obligations with respect to having a written electronic monitoring policy. For example, if an employer employs 20 employees as of January 1, 2024, and the employer then proceeds to hire 6 new employees throughout the rest of the calendar year, the employer will not be obligated to provide a written electronic monitoring policy in 2024. However, if that employer’s employee count remains at 26 employees as of January 1, 2025, then that employer will be required to have such a policy for the year 2025. These same rules apply where there is a decrease in employee count throughout the year.
However, if your organization employs workers from a temporary help agency, those employees are not to be included in your employee count.
- b) Determining whether your organization currently engages in “electronic monitoring”
“Electronic monitoring” is not currently defined in the ESA. However, the Ministry’s guidance defines electronic monitoring very broadly as “all forms of employee and assignment employee monitoring that is done electronically.” The guidance further states that electronic monitoring is not limited to monitoring done on employer-issued devices or while employees are working on-site (e.g., while employees are in the office). That is, electronic monitoring also includes any monitoring of employees done on their own personal devices or when they are working from home or on the road.
The Ministry guidance provides some examples of activities that constitute electronic monitoring:
- employer uses a GPS to track the movement of an employee delivery vehicle
- employer uses an electronic sensor to track how quickly employees scan items at a grocery store check-out
- employer tracks websites that employees visit during working hours
Given how broad the definition of electronic monitoring is, it would be prudent for employers with 25+ employees to presume that the written electronic monitoring policy requirement applies to them. If you are an employer questioning whether the requirement applies to you, it more than likely does.
If you answer yes to both questions, then your organization is required to have a written electronic monitoring policy in place by the prescribed date.
Step 2 – If the requirement applies to your organization, you must have a written electronic monitoring policy in place which complies with the ESA
If you are required to have a written electronic monitoring policy in place, that written policy be comply with the following requirements.
- a) What must your written electronic monitoring policy include?
Your written electronic monitoring policy must clearly provide information about the following:
- A description of how and in what circumstances the employer may electronically monitor employees
- The purposes for which the information obtained through electronic monitoring may be used by the employer
- The date the policy was prepared
- The date any changes were made to the policy
- Any other information as required by regulation (there do not appear to be any such regulations to consider at the moment)
Your written electronic monitoring policy can be drafted as a standalone document, or as part of another document such as a human resource policies and procedures manual.
- b) When must you have your written electronic monitoring policy in place?
You must draft your written electronic monitoring policy by the following deadlines:
- 2022 – October 11
- 2023 and onward – before March 1
You must further provide that written policy to your employees within 30 calendar days of the above deadlines.
- 2022 – November 10
- 2023 and onward – within 30 calendar days of drafting the written policy (and March 30 at the absolute latest)
- c) How must you provide your new written monitoring policy to your employees?
There are two requirements regarding when and how employees should receive your completed electronic monitoring policy.
The first requirement is regarding when employees should receive the written policy:
- Within 30 calendar days of the above-stated deadlines.
- If the employee is a new hire, within 30 calendar days of either an above-stated deadline or the day the individual becomes an employee
If an employer makes any changes to the written policy, you must further provide all of your employees with that updated written policy within 30 calendar days of your original policy being changed.
These requirements should be strictly followed as Ontario will allow employees to file a complaint with the Ministry where their employers fail to comply with the requirements.
The second requirement is regarding the form in which employees should receive the written policy. The written policy can either be provided to the employee in printed form, as an email attachment, or as a link to an online document. However, the latter two requirements (email attachment and online document) require the employee to have a reasonable opportunity to access a computer and printer and also know how to use them.
- d) How long must you hold onto your written electronic monitoring policies?
Employers are further required to retain copies of all written electronic monitoring policies for 3 years after the policy is no longer in effect.
Please note that this article is only to be used as general information and it does not constitute legal advice. We encourage employers to contact Levitt LLP directly if they have any questions regarding how to comply with Ontario’s new written electronic monitoring policy.
