Electronic Monitoring Policy in Ontario: Template + Disclosure Requirements

Employers covered by Ontario's Employment Standards Act, 2000 (ESA) that employ 25 or more employees in Ontario on January 1 of any year must have a written policy on the electronic monitoring of employees in place before March 1 of that year. These requirements were added to the ESA on April 11, 2022. There was a special first-year rule: employers with 25 or more employees on January 1, 2022 had until October 11, 2022 to have the policy in place. An employer that is required to have a written policy must provide a copy to all of its employees, and to all assignment employees assigned to perform work for that employer, within 30 calendar days of the day the employer is required to have the policy in place. If the policy is changed, the employer must provide a copy of the updated policy within 30 calendar days of the change. According to Ontario's official ESA guide, the policy must state whether the employer electronically monitors employees. If it does, the policy must describe how and in what circumstances employees may be electronically monitored, the purposes for which information obtained through electronic monitoring may be used, the date the policy was prepared, and the date any changes were made. The obligation applies to employers covered by the ESA that employ 25 or more employees in Ontario on January 1 of any year, subject to ESA coverage rules and exclusions. The Ontario guide states that the requirements apply to all employees and employers covered by the ESA except the Crown, a Crown agency, or an authority, board, commission or corporation whose members are all appointed by the Crown and their employees. To determine whether the threshold is met, the employer counts the number of employees it employs on January 1, not full-time equivalents. Part-time and casual employees each count as one employee. All employees employed at each location in Ontario are included. Anyone meeting the ESA definition of employee is counted, including homeworkers, probationary employees, some trainees, officers of a corporation who perform work or supply services for wages, employees on definite-term or specific-task contracts of any length, employees on layoff where the employment relationship has not been terminated and/or severed, employees on leave of absence, employees on strike or lockout, and employees exempt from all or part of the ESA for threshold-counting purposes. If related employers are treated as one employer under the ESA, all employees employed in Ontario by those employers are included in the count. Assignment employees of temporary help agencies are employees of the agency and count toward the agency's threshold, not the client's threshold. The agency's count includes all assignment employees, whether active or inactive on January 1. If a client employer is itself required to have a written policy, that policy must also apply to all assignment employees assigned to perform work for that employer in Ontario. The threshold is assessed on January 1 only. If an employer has fewer than 25 employees in Ontario on January 1, it is not required to have a policy for that calendar year even if headcount later rises above 25. If the employer has 25 or more employees in Ontario on January 1, it must have the policy for that year even if headcount later falls below 25, until the threshold is assessed again the following January 1. Ontario's ESA guide says 'electronic monitoring' includes all forms of employee and assignment employee monitoring that is done electronically. Government examples include using GPS to track the movement of an employee's delivery vehicle, using an electronic sensor to track how quickly employees scan items at a grocery store check-out, tracking the websites employees visit during working hours, and monitoring employee emails and online chats through software. The guide also states that what must be captured in the policy is not limited to devices or other electronic equipment issued by the employer, and is not limited to monitoring that happens while employees are at the workplace. For example, if an employer electronically monitors an employee through the employee's own personal computer used for work purposes, the policy must capture that. The requirement applies equally where the employee works from home, at the employer's workplace, or under a hybrid workplace/home model. Additional examples should be identified as practical examples rather than government-cited examples unless separately sourced. Under Ontario's ESA guide, a written policy on electronic monitoring of employees must contain: 1. A statement as to whether the employer engages in electronic monitoring of employees. If the employer does not electronically monitor employees, the policy must specifically state this. 2. If the employer does electronically monitor employees, a description of how the employer may electronically monitor employees. 3. A description of the circumstances in which the employer may electronic