Since October 11, 2022, employers who electronically monitor their employees with more than 25 employees in Ontario have been required to have a written electronic monitoring policy in place pursuant to Ontario’s Employment Standards act, 2000 (“ESA”), as amended by Ontario’s Bill 88, Working for Workers Act, 2022 (“Bill 88”). However, employers have largely been left to decide how best to introduce and structure these policies given the recency of the law.

Some common questions faced by organizations when implementing these policies include:

I. Does my organization need a stand-alone Electronic Monitoring Policy, or can Bill 88 requirements be satisfied in the body of another policy?

No, a stand-alone Electronic Monitoring Policy is not necessarily required. Guidance from Ontario’s Ministry of Labour, Immigration, Training and Skills Development (“Ministry of Labour”) states that an employer’s written policy on electronic monitoring can be a stand-alone document or it may be part of another document (e.g., a comprehensive workplace human resource policies and procedures manual). What’s important is that the requirements of Bill 88 are satisfied in the written document that is used; in particular, the document must contain a statement about whether the employer engages in electronic monitoring and, if so, the document must describe: (1) how the employer may monitor employees electronically, (2) the circumstances in which the employer may monitor employees electronically, and (3) the purposes for which information obtained through electronic monitoring may be used by the employer. This information can be included in the body of another written policy according to guidance from Ontario’s Ministry of Labour.

II. What if my organization’s policy on electronic monitoring is captured in other existing policies within my organization?

The contents of an organization’s Electronic Monitoring Policy may overlap with other policies, such as an organization’s Employee Privacy Policy, Right to Disconnect Policy, Physical Security Policy, or Acceptable Use/Bring Your Own Device Policy. Where another policy meets the requirements of Bill 88, as specified in Question 1, then there may be an opportunity to reference or incorporate these other policies by referencing an anchor document that serves as the organization’s Electronic Monitoring Policy. For example, organizations commonly have a Physical Security Policy that informs employees that their attendance and physical access to the office may be monitored by electronic means. As such, the anchor document serving as the organization’s electronic monitoring policy may refer employees to review the Physical Security Policy for additional information. Before an organization embarks on drafting a standalone Electronic Monitoring Policy, it is worthwhile to review existing policies to determine whether any policies can be referenced in the Electronic Monitoring Policy. Doing so may also help to ensure that existing policies do not conflict with the requirements of the Electronic Monitoring Policy. Employers would also be wise to take this opportunity to remind employees that they do not have a reasonable expectation of privacy in their employer’s electronic systems.

III. If my company operates outside of Canada or in multiple provinces, including Ontario, can my organization rely on existing policies?

Organizations operating outside of Canada or within multiple provinces have questioned whether they may be able to rely on existing policies to fulfill the requirements of the regulations when such policies apply across multiple jurisdictions and because Ontario is the only province that currently requires an Electronic Monitoring Policy. It may be possible for an organization to rely on or amend existing policies, so long as the policies meet the requirements set out by the regulation, as specified in Question 1. To avoid making broad changes to a global policy that may only apply for Ontario, a stand-alone section on electronic monitoring could be added with the qualification “for employees in Ontario”. Doing so would allow the document to continue to be used across multiple jurisdictions, with a necessary carve out for Ontario employees.

IV. How should the description and purposes for electronic monitoring be structured in the Policy?

The description and purposes for electronically monitoring employees are often set out as separate components within an Electronic Monitoring Policy, however some organizations have found it helpful to structure this information in the form of a table that identifies the monitoring activity, the description of that activity and the purpose of the information collected, since privacy regulators often expect organizations to connect privacy-related activities with specific purposes. For example:

Monitoring ActivityDescriptionPurpose
Key card logging    Key card logging for access to the building and/or restricted areas is logged continuously.    Organization may monitor key card logging for the purpose of tracking employee traffic to restricted areas of the premises and for logging employees’ attendance and check-in time to the office.    

V. What are the key components of Electronic Monitoring Policy?

To ensure an Electronic Monitoring Policy adequately meets the requirements of the regulation, an organization may consider structuring its Electronic Monitoring Policy to include the following sections:

  1. “Last Updated” date at the top of the Electronic Monitoring Policy
  2. ESA Requirements – a short description of Bill 88 and what is required for the Electronic Monitoring Policy
  3. Providing Copies to Employees – the manner in which this policy will be distributed and accessible to employees
  4. Description and Purposes for Electronic Monitoring
  5. Data Retention Considerations – how long will this information obtained by an employer be retained for
  6. Retention of the Policy
  7. Changes to the Policy – the employer should retain the right to make changes to the policy
  8. Questions or Complaints – who to contact if an employee has questions about this policy

VI. Does my organization need to have an Electronic Monitoring Policy if it does not electronically monitor their employees?

It is important to note that even if an employer does not practice electronic monitoring of employees, it is still required to state this in their Electronic Monitoring Policy. Guidance from Ontario’s Ministry of Labour states: “If the employer does not electronically monitor employees, the policy must specifically state this.” In accordance with the ESA, employers are required to have a written policy on the electronic monitoring of employees if they employ 25 or more employees in Ontario on January 1 of any year. In other words, even if an employer with more than 25 employees does not engage in electronic monitoring, it is still required to have an electronic monitoring policy in place.


Theo heads Baker McKenzie's Canadian Information Technology/Communications practice and is a member of the Firm's Global IP/Technology Practice Group, and Technology, Media & Telecoms and Financial Institutions Industry Groups.


Jacqueline is an IP & Technology lawyer focusing on advisory, transactional and litigation matters.


Conrad is an IP/Tech Transactions and Privacy lawyer. He works closely with engineers and in-house legal teams to commercialize, protect, and ensure that the most cutting edge ideas and technologies are rolled out lawfully and efficiently.


Jeremy is a partner in the Toronto Labour, Employment and Regulatory Law Practice Group. He advises clients daily on typical workplace issues such as reductions in force as well as a variety of employment-standards and benefits-related inquiries.