Ontario employers with 25 or more staff are now required to have a written policy on electronic monitoring of employees in place.
The requirements were added to the Employment Standards Act and took effect on Oct. 11, 2022.
The policy must state whether or not the employer electronically monitors employees. If the employer does, the policy must 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
- the date any changes were made to the policy
An employer must, within the specified timeframes, provide a copy of the written policy to all of its employees and to all assignment employees who are assigned to perform work for that employer.
These requirements were added to the Employment Standards Act, 2000 (ESA) on April 11, 2022. There is a special rule that applies in the first year of the requirement. Employers that employ 25 or more employees on Jan.1, 2022 have until Oct.11, 2022 to have a written policy on the electronic monitoring of employees in place.
Beginning in 2023, and in the years that follow, employers that employ 25 or more employees on January 1 of any year must have a written policy on the electronic monitoring of employees in place before March 1 of that year.
The ESA requirements:
- do not establish a right for employees not to be electronically monitored by their employer
- do not create any new privacy rights for employees
The ESA requirements are limited to requiring that certain employers be transparent about whether they electronically monitor employees. If they do, the employer must be transparent by:
- describing how and in what circumstances that monitoring occurs
- setting out the purposes for which the information obtained through the electronic monitoring may be used
The requirements relating to written policies on the electronic monitoring of employees apply to all employees and employers covered by the ESA except the Crown, a Crown agency or an authority, board, commission or corporation whose members are all appointed by the Crown and their employees.
Employer checklist for creating a policy
The following is a checklist employers may use when creating a written policy on electronic monitoring of employees:
- Determine whether you are required to have a written policy in place.
- If you are subject to the requirement, develop a written policy and ensure the policy:
- contains all required information
- applies to all of your employees and any assignment employees that perform work for you (the content of the policy does not need to be the same for all groups of employees, though all employees must be covered by the policy)
- is in place within the specified timeframe (for 2022, the policy must be in place by October 11, 2022. For all other years, the policy must be in place by March 1 of that year)
- Provide a copy of the written policy to all of your employees and any assignment employees assigned to perform work for you:
- in the appropriate format
- within the required timeframe
- Retain a copy of every written policy required by the ESA for three years after the policy is no longer in effect.