Policy For Electronic Monitoring in The Workplace: Recent Amendments to The Employment Standards Act

Effective April 11, 2022, Bill 88, Working for Workers Act, 2022 amended the Employment Standards Act, 2000 requiring employers to have written policies for electronic monitoring in the workplace and to provide these policies to employees. 

This new requirement does not affect or limit an employer’s ability to engage in electronic monitoring of employees, or the employer’s ability to use information obtained through electronic monitoring of its employees, nor does it establish any new privacy rights for employees. 

The term “electronic monitoring” is not defined, but it may eventually be clarified in the regulations. The news release announcing Bill 88 on February 24, 2022 referenced some of the technologies that were contemplated by the government, including computers, mobile devices, GPS, and remotely accessible systems and confirmed it is applicable in the workplace and remote workplaces.

Under Bill 88, employers with at least 25 employees as of January 1 of any given year will be required to have a written policy for all employees before March 1 of that year. A transition period for 2022, allows employers to establish a policy as of October 11, 2022 (six months from the date those provisions come into effect).

The policy must confirm whether employees are electronically monitored. If electronic monitoring is used, the policy must:

• describe how and in what circumstances employees are electronically monitored;
• identify the purposes for which the electronic monitoring may be used;
• include the date the policy was prepared and the date any changes were made to the policy; and
• provide any other information prescribed by regulation.

The policy must be provided to employees within 30 days from its required enactment and 30 days from any changes that are made to an existing policy. 

New workers must be provided with a copy:

• within 30 days from the employee’s start date;
• within 24 hours from the start of an assignment (if the worker is a temporary help agency worker); 
• within 30 days from the date an employer is required to implement the policy (if this occurs later).

Employers will be required to ensure that copies of every written policy are retained for three years after the policy is no longer in effect. 

Notably, Bill 88 allows an employee to make a complaint in writing to the Ministry of Labour, Trade and Skills Development but only in respect of whether a copy of the policy was provided within the prescribed timeline. 

Employers should ensure their:

• written policy is inclusive of the various types of electronic monitoring that are being used at their workplace, including remote work environments.
• written policy accounts for the various purposes and circumstances that their electronic monitoring is used for, which may include situations related to security, attendance, timekeeping, safety, performance management, and discipline; and
• electronic monitoring practices are reasonable in the circumstances and conducted as needed for employment-related purposes.

While not currently in effect, regulations may be enacted under the ESA to exempt certain methods of electronic monitoring from the policy requirement, as well as to prescribe certain requirements, terms or conditions of employment, or prohibitions related to electronic monitoring.