Ontario: Employers to Disclose Electronic Monitoring to Workers

​Ontario will become the first province in Canada later this year to require employers to disclose electronic monitoring policies to their employees working at the office, in the field or at home.

Bill 88, the Working for Workers Act 2022, which became law in April, will protect workers' privacy by requiring transparency from employers on how they track their employees' use of computers, cellphones, GPS and other electronic devices. Ontario employers now have to disclose their use of webcams for monitoring purposes and observation of keystrokes, screen activity and online chats in the workplace, stated Simmy Sahdra, a lawyer with McCarthy Tétrault in Toronto.

"Everything our government is doing is about building an economy that works for workers," Ontario's Minister of Labor Monte McNaughton said in a statement. "These generational changes are the first of their kind—not only in Canada but across North America."

This legislation comes on the heels of Ontario's right to disconnect from work policy.

"Ontario is taking a lead in the country in terms of modernizing its employer requirements with a view to create more transparency," said Khalfan Khalfan, a lawyer with Stikeman Elliott in Toronto.

A December 2021 Ipsos survey revealed that 89 percent of people in Ontario believe the workplace has changed permanently due to the COVID-19 pandemic. As a result, workers in Ontario said the province needs to update its employment regulations.

Electronic Monitoring in Ontario

Employers in Ontario with 25 or more employees on Jan. 1, 2022, need to prepare an electronic monitoring policy by Oct. 11, explained Hilary Page, partner at SpringLaw in Toronto. They must then roll out this policy to employees within 30 days.

Legal experts say an electronic monitoring policy should include:

• Whether the employer monitors employees' electronic devices.
• If employees are monitored, then employers must provide a description of how and in what circumstances the employer may monitor employees and set out the purposes for what information obtained through electronic monitoring may be used by the employer.
• The date the employer prepared the policy, and, if updated, the date of any policy changes.

Ontario's Ministry of Labor has yet to provide detailed guidance on what employers need to incorporate in their respective policies, according to Khalfan. The legislation also does not define electronic monitoring.

"Employers still need to be mindful of how and in what circumstances they're electronically monitoring their workforce," Khalfan added. "The introduction of an electronic monitoring policy is not free reign for employers to monitor their employees without restriction."

Before this policy requirement was enacted, employers should not have been taking any steps to spy on employees without having a valid business reason, Page noted.

"Many employment contracts will have a provision setting out that the employer generally has a right to access their own equipment and see what the employee is doing on that equipment," Page continued. "Employers would likely never have a justification for intruding into an employee's personal life by spying through their webcam."

Privacy Legislation in Canadian Provinces

Experts say it is too soon to tell whether other Canadian provinces will follow in Ontario's footsteps. Organizations in Alberta, British Columbia and Quebec are covered by provincial privacy legislation that governs how they deal with employees' personal information, said Tushar Anandasagar, a lawyer with Gowling WLG in Waterloo, Ontario.

"Ontario employers do not have similar provincial privacy legislative obligations to consider in comparison to provinces such as British Columbia, Alberta or Quebec, where there are existing overarching statutory privacy obligations that an employer must abide by," Sahdra added.

Page said she thinks other provinces could follow suit over time. "This policy requirement is addressing a need that has arisen out of the pandemic and the shift to working from home. Employees are wondering if they are being watched by their employers, and employers are figuring out how to best manage employees remotely." 

Modernizing Privacy Best Practices

Employers and HR professionals in Ontario now have an opportunity to examine the current system they have in place before developing a policy about their electronic monitoring practices, said Hina Ghaus, a lawyer with Gowling WLG in Waterloo.

Employers and HR professionals should take the following steps during the next six months:

• Review the company's existing procedures such as its social media policy and e-mail monitoring system to be compliant with privacy best practices.
• Do the homework before developing an internal policy. For example, if an employer has staff who work remotely, then the policy must disclose to them when monitoring might take place and why.
• Conduct an internal assessment with IT teams and third-party service providers.

"The new legislation is going to help kickstart the conversation employers need to have with their IT teams and third-party service providers when it comes to their existing monitoring practices," Khalfan said. "This might make employers realize where they have gaps in their security infrastructure and where they may be overreaching."

Maintaining strong privacy practices can also establish a better workplace culture to increase mutual trust among employers and employees in Ontario, Sahdra said.

Catherine Skrzypinski is a freelance writer based in Vancouver, British Columbia.