Electronic Monitoring Policy Ontario: What Every Employer Must Know

Table of Contents

1. What Is an Electronic Monitoring Policy in Ontario?
2. The Legal Source: Part XI.1 of the ESA
3. Who Must Comply?
4. What Must the Policy Include?
5. Distribution and Deadlines
6. What Types of Monitoring Are Covered?
7. Transparency, Not Restriction: What the Policy Does Not Do
8. Privacy Laws and Monitoring: The Broader Picture
9. What a Compliant Policy Looks Like
10. Common Electronic Monitoring Policy Mistakes
11. FAQ

What Is an Electronic Monitoring Policy in Ontario?

An electronic monitoring policy is a written document that tells employees whether their employer monitors them electronically — and if so, how, when, and for what purpose. In Ontario, having this policy in writing is not optional for employers with 25 or more employees. It became a legal requirement under the Employment Standards Act, 2000 (ESA) when the Working for Workers Act, 2022 added Part XI.1.

The obligation came into force on October 11, 2022 for employers who already had 25 or more employees, and applies on an ongoing annual basis based on the employee headcount on January 1 of each year.

The Legal Source: Part XI.1 of the ESA

Part XI.1 of the ESA (sections 21.1.4 to 21.1.9) is the legal foundation. The Ministry of Labour has published guidance in its Guide to the Employment Standards Act on how these provisions should be interpreted.

Key provisions in summary:

• Section 21.1.4: Establishes the obligation for employers with 25+ employees to have a written policy
• Section 21.1.5: Specifies what the policy must contain
• Section 21.1.6: Requires distribution to employees
• Section 21.1.7: Record-keeping (3 years after policy ceases to be in effect)
• Section 21.1.8: Clarifies that the ESA enforcement provisions apply to the policy obligation, not to the monitoring practices themselves

Who Must Comply?

The obligation applies to all Ontario employers — regardless of sector, industry, or whether employees work in an office, from home, or in the field — that employ 25 or more employees on January 1 of the year.

Employer Size on January 1	Obligation	Deadline
Under 25 employees	No legal obligation (though best practice to have a policy)	N/A
25 or more employees	Must have a written electronic monitoring policy	Before March 1 of that year
Employer that crosses 25 employees during the year	Obligation takes effect on January 1 of the following year	March 1 of the following year

How to count employees: Count every individual employed on January 1 — full-time, part-time, casual, and fixed-term employees. Do not count independent contractors. Each person counts as one employee regardless of the hours they work. Employees on leave still count. Seasonal employees who happen to be employed on January 1 count.

The policy must cover all employees in Ontario — including remote workers, executives, managers, and shareholders who are employees under the ESA.

What Must the Policy Include?

Part XI.1 specifies two required categories of content:

1. Whether Electronic Monitoring Occurs

The policy must state whether the employer electronically monitors its employees. This is a binary disclosure — yes or no.

Importantly, employers who do not conduct any electronic monitoring are still required to have a written policy — and that policy must state that no monitoring occurs.

2. If Monitoring Occurs: How, When, and Why

If the employer does engage in electronic monitoring, the policy must describe:

Required Element	What It Means	Example Language
How employees are monitored	The specific methods and tools used	“Company email and messaging systems are monitored. GPS location tracking is enabled on company-issued delivery vehicles.”
In what circumstances monitoring occurs	Whether it is continuous, selective, or triggered by specific events	“Email monitoring occurs on an ongoing basis. GPS tracking is active only during scheduled work hours.”
Purposes of the information	What the employer uses the monitored information for	“Information is used to ensure compliance with company policies, for performance management, to investigate suspected policy violations, and to comply with legal obligations.”

There is no required format, length, or template. The policy can be a standalone document, a section of the employee handbook, or part of a larger technology use policy — as long as the required content is present and it is a written document.

Distribution and Deadlines

Situation	When Policy Must Be Distributed
New policy (first time or annual update)	Within 30 days of the policy being in place (i.e., by March 1 or shortly after if put in place on March 1)
Existing policy is changed	Within 30 days of the changes being made
New employee hired	Within 30 days of the employee’s start date

Distribution must be in writing. Best practice is to distribute by email with a read receipt, or by posting on the company intranet with a mandatory acknowledgment, and to keep a record that each employee received the policy. There is no prescribed form for acknowledgment, but being able to demonstrate compliance matters.

Record-keeping obligation: Keep a copy of every version of the policy for 3 years after it ceases to be in effect.

What Types of Monitoring Are Covered?

The ESA does not define “electronic monitoring.” Based on Ministry guidance and the ordinary meaning of the term, it covers any monitoring conducted through electronic means, including:

Type of Monitoring	Examples	Covered by Policy?
Email and messaging monitoring	Reading employee emails, reviewing Slack/Teams messages	Yes
Internet use tracking	Web browsing logs, time spent on websites	Yes
Device monitoring	Keyloggers, screen capture, application usage tracking	Yes
GPS/location tracking	Vehicle GPS, phone location tracking during work hours	Yes
Video surveillance	CCTV in the workplace, video monitoring of remote workers	Yes
Productivity software	Time-tracking apps, activity monitoring software (e.g., Hubstaff, ActivTrak)	Yes
Remote work monitoring	VPN access logs, cloud storage activity, remote desktop tracking	Yes — if employees work remotely and the employer monitors them through these means
HRIS attendance tracking	Automated clock-in/clock-out systems	Yes — if electronic
Physical security badge access logs	Tracking when employees enter/exit the building	Likely yes if electronically logged and reviewed

Transparency, Not Restriction: What the Policy Does Not Do

One of the most important aspects of Ontario’s electronic monitoring policy requirement is what it does NOT do. The ESA requirement is purely a transparency and disclosure obligation. It does not:

• Restrict what types of monitoring an employer can conduct
• Create a right for employees to be free from monitoring
• Require employer consent from employees before monitoring
• Give the Ministry of Labour authority to investigate whether an employer’s monitoring practices are consistent with the policy
• Create a private right of action for employees who are monitored contrary to the policy

Employees can file a complaint with the Ministry of Labour if they did not receive the policy within the required timeframe. They cannot file a complaint because they believe the monitoring described in the policy is unfair or invasive.

Privacy Laws and Monitoring: The Broader Picture

While the ESA regulates the policy disclosure obligation, the actual monitoring of employees engages a separate legal framework:

Legal Framework	What It Governs	Who It Applies To
PIPEDA (federal)	Collection, use, and disclosure of personal information — applies to federally regulated employers and interprovincial data flows	Federally regulated employers
Ontario PHIPA	Personal health information in healthcare settings	Health information custodians
Common law privacy (Ontario)	Tort of intrusion upon seclusion — employees have a reasonable expectation of privacy in some contexts even from their employer	All employers (Jones v. Tsige, 2012 ONCA)
OHSA (Bill 190, 2024)	Electronic harassment and digital workplace conduct — employers must address electronically-enabled harassment under their OHSA harassment program	All employers
Human Rights Code	Monitoring cannot be used to discriminate on protected grounds (e.g., targeting certain employees based on disability, religion, etc.)	All employers

In short: the ESA tells you to disclose. Privacy law tells you to be reasonable. HR practice tells you to use monitoring proportionately and for legitimate purposes.

What a Compliant Policy Looks Like

There is no prescribed template, but a compliant policy for an employer that does engage in electronic monitoring should include these elements:

1. Header: “Electronic Monitoring Policy” with date of preparation and date of any amendments
2. Scope: Applies to all employees in Ontario, including remote workers and those on leave
3. Whether monitoring occurs: A clear statement that the employer does monitor employees electronically
4. How monitoring occurs: List of the specific methods (email, GPS, internet monitoring, productivity software, etc.)
5. In what circumstances: Whether monitoring is continuous, time-limited, or event-triggered; whether remote workers are subject to the same monitoring
6. Purposes of monitoring: Why the employer monitors — policy compliance, performance management, investigation of violations, legal obligations, security, productivity
7. How information is handled: Not legally required but strongly recommended — who has access to monitoring data and how long it is retained

Common Electronic Monitoring Policy Mistakes in Ontario

Mistake	Why It’s a Problem	What to Do Instead
Having no policy at all	ESA violation for any employer with 25+ employees; Ministry audit risk	Create and distribute a written policy by March 1 of each year the threshold is met
Policy is vague (“we may monitor communications”)	Technically non-compliant — the policy must describe how and in what circumstances, not just that monitoring may happen	Be specific about each monitoring method and when it applies
Not distributing to existing employees within 30 days	ESA violation — distribution is as important as having the policy	Track distribution; use HRIS or email confirmation to document receipt
Not giving policy to new hires within 30 days	ESA violation — new employees must receive the policy within 30 days of hire	Include policy distribution in the onboarding checklist
Not updating when monitoring practices change	If you add a new monitoring tool (e.g., new productivity software for remote workers), the policy must be updated and redistributed within 30 days	Review the policy annually and whenever a new monitoring tool is implemented
Assuming non-monitoring means no policy needed	Wrong — employers that do not monitor still need a written policy stating they do not monitor	Create a short policy confirming no electronic monitoring occurs
Confusing this policy with the Disconnecting from Work Policy	These are two separate ESA requirements with different content and purposes — having one does not satisfy the other	Maintain both as separate, clearly labeled documents (though they can be in the same employee handbook)
Not retaining old versions of the policy	3-year retention obligation — if the Ministry audits historical compliance, you need past versions	Archive every version with the date it was put in place and the date it was replaced

Frequently Asked Questions

Who must have an electronic monitoring policy in Ontario?

Employers with 25 or more employees on January 1 of any year. The policy must be in place by March 1 of that year. Count all individuals — not FTEs — including part-time, casual, and fixed-term employees.

What must the policy include?

Whether monitoring occurs. If yes: how and in what circumstances employees are monitored, and what the monitored information is used for. Employers who don’t monitor still need a policy stating this.

When must employees receive the policy?

Within 30 days of the policy being in place or updated. New employees within 30 days of hire. Distribution must be in writing and documented.

Does this law restrict what monitoring I can do?

No. The ESA only requires transparency. Other laws — privacy legislation, common law, the Human Rights Code — may constrain specific monitoring practices. The ESA itself does not.

What happens if I don’t have a policy?

It is an ESA violation. The Ministry of Labour can investigate on complaint or during a proactive inspection and issue a compliance order. Directors and officers can be personally liable for corporate ESA violations.

Does this apply to remote workers?

Yes. The policy must cover all employees in Ontario, including those working from home. If you monitor remote workers — through VPN activity logs, email monitoring, or productivity software — the policy must describe this.

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Need help drafting a compliant electronic monitoring policy for your Ontario workplace? Our HR consultants help employers build policies that are both compliant and practical. Contact HRX Connect to get started.

Related resources: HR Consulting | Disconnecting from Work Policy Ontario | Managing Remote Employees Ontario | Employment Contracts Ontario