Do I need an electronic monitoring policy?

Do I need an electronic monitoring policy?

The COVID-19 pandemic has provoked many changes to the workplace. It has prompted mandates, new policies, and new culture norms, and as a response, the Employment Standards Act, 2000 (ESA) needed to make some changes.

As many employees have transitioned to either virtual or hybrid working conditions, one of the concerns has become supervising productivity online. The shift from a completely in-office workforce to a large majority working online, has created anxiety among employers. How will they know whether their employees are doing their jobs? Because of this concern, employers have begun to monitor their employees through their computers via online work platforms or more elaborate surveillance platforms.

The ESA has created a regulation outlining that if an employer has more than 25 employees, they must create a written policy outlining their method of electronic monitoring. The ESA will then calculate the total number of employees based on those working January 1st of each year.

When following this provision, the employer must first declare whether they monitor their employees online. If the employer discloses that their employees are electronically supervised, they must reveal how and when they monitor their employees, for what reasons the employer uses the collected data, the date of when the policy was created, and if/ when the policy was altered.

Monitoring employees at this level has developed an uneasiness among employees. There is debate about whether this is an intrusion of privacy. There is concern about how much information the employer is retrieving daily and whether employees know the possible extent of the data collection.

The ESA outlines that this policy demands that employers must affirm their use of electronic monitoring to all their employees (this includes employees on probation, on leave, temporary employed, temporarily laid-off, working remotely, etc.). This policy does not present any new privacy rights protecting employees or present the right for employees not to be monitored. If an employee rejects their employer on this matter, the employer may legally terminate the employee without cause. The employer will not have a legal issue with this termination as long as the employee receives the proper amount of notice or pay in lieu of notice, their severance is paid, and there was no harassment or discrimination involved in the termination.

If you are an employer who requires help creating an electronic monitoring policy or assistance with terminating an employee who refuses to comply, please contact KCY at LAW by filling in an online consultation request or contact us by phone at 905-639-0999 to book your consultation today.