Earlier this year, Ontario became the first Canadian jurisdiction to pass a law requiring certain employers to disclose whether and how they electronically monitor employees. 

Under the new law, provincially regulated employers with 25 or more employees in Ontario, as of January 1, 2022, (or as of January 1 of any subsequent year) must implement a written policy about electronic monitoring.

What information must be included in the electronic monitoring policy?

The new electronic monitoring policy must include the following information:

• Whether employees are electronically monitored by the employer;
• If the employer does engage in electronic monitoring, the policy must describe how and in what circumstances the employer may electronically monitor employees;
• The purpose for which information obtained through the electronic monitoring process may be used by the employer; and
• The date on which the policy was prepared, as well as the date(s) of any amendments to the policy.

Employers must give employees a copy of the policy within 30 days of preparing the policy or making any amendments to the policy. Similarly, employers must provide a copy of the policy to any new hires within 30 days of their hire date, or 30 days from the date on which the policy is implemented, whichever is later.

Employers are required to retain a copy of every written policy on electronic monitoring required by the employment standards regime for three years after the policy is no longer in effect.

What are the key deadlines?

For employers with 25 or more employees in Ontario as of January 1, 2022, the deadline for implementing an electronic monitoring policy is October 11, 2022. Employers with fewer than 25 employees as of January 1, 2022, but with 25 or more employees as of January 1 in any future year, are required to implement the policy by March 1 of that year.

Where an employer has multiple locations in Ontario, all employees in each location count towards the 25-employee threshold.

What is “electronic monitoring”?

While the new law does not define “electronic monitoring,” the Ontario government’s interpretative guide states that “electronic monitoring” includes all forms of employee monitoring that is done electronically, including for example, when an employer uses GPS to track the movement of an employee’s delivery vehicle, or uses electronic sensors to track how quickly an employee scans items at a grocery store check-out.

“Electronic monitoring” is not limited to monitoring that is performed on devices or equipment issued by the employer, or which occurs while employees are at the workplace. For example, if the employer electronically tracks the websites that an employee visits during work hours from their own personal computer that is used for work purposes, the electronic monitoring policy must capture that.  Likewise, the policy must capture any electronic monitoring that an employer undertakes while the employee is working remotely from home.

While the Ontario government’s stated intention for introducing this new law is geared towards greater transparency, the law does not prohibit employers from monitoring their employees nor does it create any new privacy rights for employees.

Next steps

Dentons Canada’s Employment and Labour group has developed a comprehensive, ready-to-use Ontario Electronic Monitoring Policy template that can be easily integrated into your employee policy handbook as is and/or with updates to add scenarios specific to your organization. We are pleased to make this available to any employer who requires such a policy for a flat fee. Click here to sign up to receive a copy, along with an FAQ sheet.