Compliance date for Ontario electronic monitoring policy has arrived

As of November 10, 2022, most provincially regulated Ontario employees should have their employer’s electronic monitoring policy in hand (or in their inbox). If your organization has not prepared and distributed this policy, it is time to do so.

The new policy requirement

In April 2022, Ontario made changes to the Employment Standards Act, 2000 (ESA) requiring designated employers to adopt a workplace “electronic monitoring policy.”  An employer must adopt this policy if:

• It is provincially regulated.
• As of January 1 of any year, it employs 25 or more employees.

Employers who had 25 or more employees as of January 1, 2022, were required to have the policy in place by October 11, 2022, and provide it to employees by November 10, 2022. 

In future, if an employer has 25 employees or more for the first time on January 1 of a given year its policy must be in place as of March 1 that year.

Contents of an electronic monitoring policy

The requirements for an electronic monitoring policy are limited to informing employees of how, when and why they are monitored electronically. The policy must be in writing and describe:

• Whether the employer electronically monitors employees and, if so:
  • how and in what circumstances the employer may electronically monitor employees; and
  • the purposes for which information obtained through electronic monitoring may be used by the employer.
• The date the policy was prepared and the date any changes were made to the policy.

If an employer does not conduct electronic monitoring of employees it must still adopt a policy to that effect. An employer may create multiple policies applicable to different employees, either in a single document or in multiple documents.

Scope of electronic monitoring 

“Electronic monitoring” includes all forms of monitoring of employees that are done electronically. Examples include:

• Using GPS to track employee movements.
• Using electronic sensors to track how quickly employees work.
• Tracking employee computer use, including keystrokes, log-in times, and internet browsing.

The scope of the required information in the policy is not limited to monitoring of employer-owned devices or monitoring that occurs while employees are at the workplace. If the employer electronically monitors employees in any way, including on their personal devices, at home or after working hours, details of such monitoring must be captured in the policy.

Providing the policy to employees

A written copy of the electronic monitoring policy must be provided to each employee within 30 days of:

• The date the employer is required to have the policy in place.
• The date an employee is hired (or within 30 days from the day the employer is required to have the policy in place, if that date is later).
• The date any change is made to the policy.

The employer may provide employees with a copy of its policy through a printed copy, an email attachment if the employee can print a copy, or a link to the document online if the employee has a reasonable opportunity to access the document and a printer.

An employer is required to retain copies of every written electronic monitoring policy for three years after it ceases to be in effect.

Failure to adopt and disseminate the policy

Employees may make a complaint to the director of employment standards if the employer has not provided them with a copy of its electronic monitoring policy by the required deadlines. Unionized employees may grieve a failure to disseminate the policy. 

An employer may be ordered by an employment standards officer or labour arbitrator to comply by issuing the policy.

No limitation on an employer’s right to monitor

The ESA amendments specifically state that the requirement for an electronic monitoring policy does not affect or limit an employer’s ability to use information obtained through electronic monitoring of its employees. The policy requirement does not create new privacy rights for employees beyond the requirement to inform employees of the nature and extent of electronic monitoring.

However, unreasonable electronic monitoring of employees may still trigger liabilities outside of the ESA.