Under the Ontario Employment Standards Act, 2000, employers in Ontario that employ 25 or more employees have been required to develop a written policy on Electronic Monitoring effective October 11, 2022 and must provide a written copy of the policy to all existing employees no later than November 10, 2022.
The Electronic Monitoring policy must inform employees of how, and under what circumstances, they are being electronically monitored, i.e. through employer-provided computers, cell phones, GPS systems, and any other electronic devices/means. The policy also needs to include the purposes for which the information obtained through electronic monitoring may be used by the employer. It is recommended that employers work with their IT department/provider to audit the ways in which electronic monitoring of employees takes place within their organization to ensure the policy is comprehensive for compliance purposes.
Even if an employer doesn’t perform any electronic monitoring of employees, an employer with 25 or more employees is still required to draft a policy stating that it doesn’t to comply with the policy requirements of the ESA.
If an employer did not have 25 employees as of October 11, 2022, it is important that another employee count is conducted on January 1, 2023, as the requirement to draft and implement a written Electronic Monitoring policy will be triggered if the employer reaches 25 or more employees as of January 1, 2023. The employer would then have until March 1, 2023, to draft and implement an Electronic Monitoring policy. Follow this link for direction on which types of employees must be included in an employee count for the purposes of compliance with the ESA and the Electronic Monitoring policy: https://www.ontario.ca/document/your-guide-employment-standards-act-0/written-policy-electronic-monitoring-employees.
IMPORTANT POINT TO REMEMBER:
An employee count must be conducted every January 1 of every year starting 2023 to ensure compliance with the ESA and the Electronic Monitoring policy requirements.
If, on January 1 of any year, an employer employs fewer than 25 employees in Ontario, then the ESA does not require that the employer have a written policy in place on the electronic monitoring of employees. This is the case even if the employer’s employee count increases at a later point in the same calendar year – e.g., if the employer has 20 employees on January 1, 2023, and then hires 5 more on July 1, 2023, the employer would not be required to implement an Electronic Monitoring policy for the year 2023. Then, if the employer still has 25 employees as of January 1, 2024, the employer would be required to draft and implement an Electronic Monitoring policy before March 1, 2024 to comply with the ESA.
Please contact HRPAR today to speak to a member of our team for specialist assistance in developing a compliant Electronic Monitoring policy for your organization.