Ministry of Labour Releases Guidance on Electronic Monitoring Policies

Readers will recall that on April 11, 2022 Ontario introduced a requirement in the ESA 2000 that employers with 25 or more employees as of January 1, 2022 must have a written policy on electronic monitoring of employees (the “EM Policy”) in place by October 11, 2022. In following years, employers with 25 or more employees as of January 1 must have an EM Policy in place by March 1 of that year.

At the time the requirement was introduced, there was little guidance about how an EM Policy should look other than that they had to include:

• 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; and
• the date any changes were made to the policy.

Recently, the Ministry of Labour released new information on their Guide for this new requirement. Some highlights from that include:

• Only employees in Ontario count towards the “25 or more” threshold.
• For 2023 onwards, changes in employee count throughout the year will not impact the employer’s obligation or non-obligation to have an EM Policy throughout the year. For example, if an employer has fewer than 25 employees in Ontario on January 1, 2023, then they will not be required to have an EM Policy for that year, regardless of whether they have more than 25 employees at any time later that year.
• The EM Policy can be a stand-alone document or may be part of another document such as an Employee Handbook.
• “Electronic Monitoring” includes all forms of monitoring that is done electronically, including the following examples:
  • GPS tracking on vehicles;
  • Electronic sensor tracking (e.g. for monitoring how quickly grocery/retail clerks scan items at check-out); and
  • Tracking websites visits during workhours.

Note: Monitoring of Slack or Teams chats channels are also examples of monitoring. We also believe the video and voice call recording also qualifies as EM so must be mentioned in the policy.

• If the employer does not electronically monitor employees, the EM Policy must specifically state this.

Note: This seems illogical and we do not believe it is necessarily supported by the legislation.

• The EM Policy can be provided to employees as:
  • A printed copy;
  • An attachment to an email if the employee can print a copy; and
  • A link to the document online if the employee has an opportunity to access the document and a printer.
• The EM Policy does not affect an employer’s ability to use the information obtained through the electronic monitoring in any way it sees fit.

We recommend reviewing the Guide to ensure you understand the requirements for the EM Policy. In particular, the Guide provides some examples of how an EM Policy can be drafted for GPS tracking and email/chat monitoring.

We suggest having a paragraph in your employment agreements stating that the employee acknowledges and agrees to the terms of the EM Policy and to have a separate EM Policy that can be changed over time as needed.

If you want more information on this topic, you can contact us at:

Geoffrey Howard:      ghoward@howardlaw.ca

604 424-9686

Sebastian Chern:         schern@howardlaw.ca

604 424-9688