By requiring employers to have a written policy on the electronic monitoring of their employees, the Ontario government is aiming to increase employer transparency, says Andy Pushalik, partner and head of the employment and labour group at Dentons Canada LLP.
“With so many employees now working from home, [the government] felt there was a requirement that employers should be telling employees how they’re monitoring their actions or activities. So it’s not a prohibition on employee monitoring, it’s simply a law which ensures disclosure of what employers are doing.”
By Oct. 11, 2022, employers with 25 or more workers are required to have a written policy on the electronic monitoring of employees. While monitoring raises privacy concerns, there are some justifiable reasons, says Pushalik, such as assessing cybersecurity risks or protecting confidential information.
Janice Pereira, an associate in the employment and labour group at Denton’s Toronto office, notes employers should think more broadly about what qualifies as a workplace in this economic landscape, as well as what kind of devices might be subject to monitoring.
“Traditionally, we think of computers and cellphones issued by the employer that are used in an office or someone’s home. But you also have cases like delivery drivers where their workplace is technically their vehicle. Sometimes employers monitor their location through GPS on an application, for example. Something like this would also need to be put in an electronic monitoring policy.”
With the definition of employee monitoring open to interpretation, Pushalik advises employers to take a broad approach in their policy.
And Pereira adds, while the province published an interpretive guide to the requirement, more clarity is required. She suggests employers speak with their information technology department to find out the scope of monitoring their workplace. “Is [the] passive collection of information ‘monitoring’ for the purposes of this legislation, simply because an employer can access it if they want to? I think that’s going to be a point of concern among employers as to how much they need to disclose.”