New requirement in Ontario for enhanced transparency on electronic monitoring in the workplace

The Government of Ontario first announced in February 2022 that it would introduce legislation requiring large employers to inform workers if and how they are being monitored electronically. From the news release that followed, there were several questions about these proposed changes, such as whether this would apply to "employees" under the Employment Standards Act, 2000 (the "ESA"), the broader definition of "workers" under the Occupational Health and Safety Act (the "OHSA"), or perhaps an entirely new category or definition of worker.

Clarification came with the introduction of Bill 88, the Working for Workers Act, 2022, which was first introduced in the Ontario Legislative Assembly on February 28, 2022.

As suggested in our previous bulletin, Bill 88 moved very quickly through the Legislature. On April 7, 2022, the Government of Ontario announced that Bill 88 would go forward, and it received Royal Assent on April 11, 2022.

While Bill 88 contains several changes for employers in Ontario, this article focuses specifically on the new requirement for most employers to have a policy on electronic monitoring in the workplace. Additional changes will be addressed in a separate article.

A policy on electronic monitoring in the workplace

The new requirement for creating a "written policy on electronic monitoring" will be covered under the ESA. This means the requirement will apply to provincially regulated employers and their employees:

An employer that, on January 1 of any year, employs 25 or more employees shall, before March 1 of that year, ensure it has a written policy in place for all employees with respect to electronic monitoring of employees.

This language is substantially similar to the requirements under the recently enacted changes to the ESA regarding the "right to disconnect."

The written policy on electronic monitoring must contain information regarding:

1. Whether the employer electronically monitors employees and, if so, a description of 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;
2. The date the policy was prepared and the date any changes were made to the policy; and
3. Such other information as may be prescribed. (The reference to "prescribed" indicates that a regulation under the ESA may be filed in the future that specifies additional requirements).

Employers will also be required to provide a copy of the written policy to employees within 30 days of when the employer is required to have the policy in place. The same requirements will apply to any policy amendments and for new hires (or, in the case of an assignment employee, within 24 hours of the work assignment or day the employer is required to have a policy in place). An employer must also retain copies of every electronic monitoring policy for 3 years after the policy ceases to be in effect.

When will this be required in the workplace?

Despite the March 1 requirement specified above, Bill 88 contains a transition period. Employers will have 6 months following Royal Assent to implement their policy, which means the policy must be implemented no later than October 11, 2022. In addition, employers shall determine whether they employ 25 or more employees as of the January 1 immediately preceding this date (January 1, 2022).

What are the potential implications?

The amendments do not define "electronic monitoring," making it potentially difficult for employers and employees alike to determine the potential effect of all these amendments at this stage. However, for the time being, the amendments do not on their face seek to limit nor prohibit electronic monitoring. The legislation appears to be focused on transparency.

Complaints with respect to electronic monitoring can only be made in respect of the employer failing to provide a copy of the policy or amended policy to employees or assignment employees. This suggests that there will be no investigation by the Ministry of Labour, Training and Skills Development ("MOL") into the propriety of the electronic monitoring. This similar to how the MOL will investigate whether an employer has a workplace violence and harassment policy and program in place (and whether those documents contain the prescribed requirements), but will not make a determination as to whether any instance of workplace harassment or violence occurred. In fact, the amendments to the ESA under Bill 88 specifically state nothing in that section affects or limits an employer's ability to use information obtained through electronic monitoring of its employees. We expect that the MOL will publish additional content for employers on electronic monitoring in the coming months, as was done with the requirement for a policy on the right to disconnect.

Given that there is no existing statute in Ontario specifically governing employee privacy for private sector employers and their provincially regulated employees (i.e. those subject to the ESA), it is surprising that this electronic monitoring policy is addressed under the ESA and not under a broader bill proposing a more detailed framework for employee privacy protections in the province.

Existing employee privacy protection varies significantly within Canada depending on jurisdiction, sector and whether the workplace is unionized.

In the federally regulated sphere, public sector employers must act in accordance with the Privacy Act and private employers must act in compliance with the Personal Information Protection and Electronic Documents Act (PIPEDA). Similarly, public sector employers in Ontario are subject to the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act. Public sector employers are also obliged to act in accordance with the Charter, which protects against unreasonable search and seizure, amongst other things.

In unionized settings, employee privacy considerations have also developed through the grievance arbitration process. In many arbitration cases, arbitrators are called upon to assess the reasonableness of an employer's policies, which an employee or union asserts is an unreasonable invasion of employee privacy. As an example, arbitrators in recent labour awards have held that requiring an employee to disclose medical information, such as vaccination status, must be related to a demonstrated risk or business need, and reasonably necessary and proportionate.[1] In another labour award, an arbitrator found that the disclosure of vaccination status was a "minimal intrusion" into employees' privacy rights that was overshadowed by public health concerns.[2]

Employees that are working in the non-unionized, private sector and whose employment is subject to the ESA have far fewer means of challenging an invasion of privacy.

It is uncertain at this point whether the changes under Bill 88 will have any effect on addressing this gap in privacy protections. It is possible that an employer's breach of its electronic monitoring policy could lay the foundation for a tort claim by an employee, or possibly a claim for aggravated or bad faith damages in a wrongful dismissal matter, though there is an express carve out under Bill 88 that specifies nothing in that section "affects or limits an employer's ability to use information obtained through electronic monitoring of its employees." Bill 88 does not codify or bolster common law privacy protections for private sector employees, which remain a patchwork of principles. For example, the Supreme Court of Canada's decision in R v Cole,[3] while addressing a criminal law matter, also confirmed that employees have a reasonable expectation of privacy with respect to information stored on workplace computers. At this stage, the additions under Bill 88 only appear to increase transparency by informing employees of their employer's monitoring practices and the underlying rationale.

While the electronic monitoring policy additions to the ESA under Bill 88 may be the first step in changing the landscape of employee privacy laws in Ontario, we expect further (and possibly substantial) changes will be seen through any regulations that follow. The amendments to the ESA include enhanced regulation-making authority that would allow the Lieutenant Governor in Council to permit exemptions in respect of certain forms of electronic monitoring and to prescribe, among other things, the definition of "electronic monitoring," additional requirements for electronic monitoring policies and prohibitions related to electronic monitoring.

How does Bill 88 compare to other provinces?

The Ontario Government's first news release specified that, if passed, Ontario would become the first province to require electronic monitoring policies and protect workers' privacy by requiring employers to be transparent on how employees' use of computers, cell phones, GPS systems and other electronic devices are being tracked. However, Quebec, Alberta and British Columbia already have privacy legislation in place that apply to private sector employers' collection, use and disclosure of employee information. At a high level, such legislation requires the employer to have a reasonable purpose for monitoring and to provide notice to employees that they will be monitored and the purpose of such monitoring. Best practice in such cases would be to implement a written policy to that effect.

The Information and Privacy Commissioner of Ontario ("IPC"), established to provide oversight of Ontario's access and privacy laws, recently wrote a letter to the Legislative Assembly of Ontario Standing Committee on Social Policy offering potential amendments to Bill 88 that could be included in the new legislation to provide more accountability and transparency. The suggested revisions included mandatory oversight by the IPC and providing the IPC with the explicit power to examine the policies and identify emerging trends. The Commissioner also proposed a longer-term view that electronic workplace monitoring should be governed by a more comprehensive "Ontario privacy law" that was initially proposed in the Ontario Government's 2021 white paper on Modernizing Privacy in Ontario: Empowering Ontarians and Enabling a Digital Ontario, which would bring Ontario's private sector employee privacy laws more in line with those already in place in Quebec, Alberta and British Columbia. None of these suggestions were incorporated into Bill 88. Whether the IPC's recommendations will be reflected in separate legislation or the regulations that follow remains to be seen.

What happens next?

While employers have time to implement this new electronic monitoring policy, we strongly encourage employers to begin thinking about this policy early, as it will take time to develop. Such considerations may include preliminary consultations between Human Resources and IT departments to understand whether electronic monitoring is currently in place for Ontario employees. Employers that already have electronic monitoring policies in place or operate in several provinces—particularly Alberta, British Columbia and Quebec—may wish to consider a review of existing policies to determine if Bill 88 will necessitate an amendment.

If you have any questions about these changes to Ontario workplaces, please contact the authors or a member of the Employment, Labour & Equalities Group.