PROFESSIONALS & MANAGERS

UNI GLOBAL UNION

PROFESSIONALS

& MANAGERS

LEGISLATING A

RIGHT TO

DISCONNECT

UNI GLOBAL UNION PROFESSIONALS & MANAGERS

LEGISLATING A RIGHT TO DISCONNECT

The purpose of this briefing is to provide

guidance to unions that want to campaign

and lobby for the introduction of a right

to disconnect in their national laws.

The previous guides published by UNI

Professionals and Managers were directed

at unions seeking to negotiate a right to

disconnect with employers without the

support of a national law. This briefing

draws upon our previous work, and the

best practices guide in particular should

be consulted in conjunction with this

briefing.

The right to disconnect refers in short to

the right of workers to disconnect from

their work and to not receive or answer

any work-related emails, calls, or messages

outside of normal working hours. It is

designed to establish boundaries around

the use of electronic communication and

to provide workers with an opportunity to

improve their work-life balance and ensure

that they receive adequate rest and family

time. It also protects workers against any

negative repercussions for disconnecting.

BACKGROUND

The right to disconnect emerged as a legal

right in France in 2016 and quickly spread

to other countries in Europe. Chile was the

first country outside Europe to legislate a

right to disconnect in 2020 in connection

with its new law on remote work during

the COVID pandemic and was followed by

Argentina a few months later.

As legal systems can vary greatly from

country to country, it is not possible to

cover all possible aspects of legalizing a

right to disconnect in this briefing. Instead,

we aim to provide guidance and inspiration

for national unions that are themselves

experts on the laws in their countries and

that wish to campaign for a legal right to

disconnect.

Note that the translations of the laws

relied upon in this briefing are not oicial

translations and should not be quoted as

such.

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LEGISLATING A RIGHT TO DISCONNECT

FRANCE

The right to disconnect as a legal right

emerged in France, where in 2016 a law

(the so called El Khomri law) was enacted

that introduced the right to disconnect

as a topic for mandatory negotiation in

companies with more than 50 employees.

The law built upon a 2001 French Supreme

Court ruling that “the employee is under

no obligation either to accept working

at home or to bring there his files and

working tools”,

and a 2004 decision by

the same court that an employee cannot

be reprimanded for being unreachable

outside working hours.

The law also followed a National

Interprofessional Agreement signed

by the social partners on 19 June 2013

called “Towards a policy to improve the

quality of life at work”.

This agreement

included, under the heading of proper

use technology and respect for workers’

private life, the notion of protecting

workers’ “time to disconnect” – something

that had already been tested in a number

of companies in France at the time.

In the 2016 reform of the labor code, the

French government thus included in the

chapter “Adapting the Labor Law to the

Digital Age” a provision to amend the labor

code and introduce a right to disconnect

as a subject for mandatory negotiations

between the social partners at the

company level. By adding a new paragraph

EXISTING

LAWS

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LEGISLATING A RIGHT TO DISCONNECT

7, Article L2242-17 of the labor code stated

the following: “The annual negotiations

on equal opportunities between women

and men and the quality of working life

cover … The terms enabling employees

to fully exercise their right to disconnect

and the introduction by the company

of schemes regulating the use of digital

tools, with a view to ensuring compliance

with regulations governing rest and leave

periods, privacy and family life.”

It further noted that if the social

partners cannot reach an agreement,

“an employer may draw up a charter,

following consultations with the Works

Council or, if such does not exist, with

sta representatives. Such charter shall

define the terms for exercising the right

to disconnect while also providing for the

implementation of training and awareness-

raising measures relating to the reasonable

use of digital tools. Such measures

shall target employees, supervisors and

management.”

SPAIN

Following the adoption of the French law,

the Spanish government in 2017 began

studying the possibility of securing a right

to disconnect in Spanish law as well. On 6

December 2018, the government adopted

the new Data Protection Act, which

transposed the 2016 European Union

(EU) General Data Protection Regulation

(GDPR) into Spanish law but which also

introduced a new set of digital rights for

both citizens and employees.

Article 88

thus stipulates that workers in both the

private and public sectors shall have a

right to disconnect in order to ensure

respect for their periods of rest, leave, and

holidays, as well as for their personal and

family privacy.

The law does specify, however, that the

enjoyment of the right to disconnect

must take into account the nature of the

employment relationship in question,

and that the right may be flexible or even

inapplicable if the employment relationship

does not allow it.

Like the French law, the Data Protection

Act prescribes a central role for the social

partners in negotiating the details of

the right to disconnect. If there are no

unions present, it shall instead be agreed

between the company and the worker

representatives. The employer shall then

prepare an internal policy for all sta,

including sta in managerial positions,

outlining the proper exercise of the right

to disconnect and ensuring that sta

receive training on the reasonable use

of technology to avoid the risks of digital

fatigue. The law specifically notes that

workers who work remotely or from their

homes either occasionally or regularly

shall also enjoy the right to disconnect.

ITALY

A debate about the right to disconnect

also ensued in Italy in 2016 following the

French example. Two bills were introduced

in the Italian Senate to regulate this right,

with Bill No 2229 explicitly proposing

that workers have the right to disconnect

from technological devices and from

online platforms without suering any

consequences with regard to their labor

relationship or compensation. On 14 June

2017, the right to disconnect was eventually

codified into law when Law No. 81/2017 on

“Smart Working” was enacted to update

the country’s outdated legislation on

teleworking and to promote and provide

a framework for new forms of remote

working and facilitate workers’ work-life

balance.

“Smart work” is in Italy defined as work

with no precise constraints in terms of

working hours or place of work. Work

can thus be done partly from home or

Workers in both the private and

public sectors shall have a right

to disconnect in order to ensure

respect for their periods of rest,

leave, and holidays, as well as for

their personal and family privacy.

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LEGISLATING A RIGHT TO DISCONNECT

from another place of work as long as

it is suitable for performing the job. The

employer and the employee must agree

in writing about the terms and conditions

of “smart working”, which must include

provisions about the employee’s rest

periods as well as the technical and

organizational measures necessary to

ensure the employee’s right to disconnect.

The main dierence between the Italian

law and those of France and Spain is

that in Italy, the right to disconnect is

limited to workers performing “smart

work” and does not apply generally to

the broader workforce. “Smart working”

has increased since the passing of the

law, however: Whereas an estimated

250,000 Italian workers worked flexibly in

October 2016,

as of October 2019 more

than 570,000 workers benefited from this

form of working.

The Italian government

also made a number of references to

”smart working” in decrees issued in 2020

in connection with the COVID-19 crisis

to broadly enable and promote remote

working during the pandemic.

BELGIUM

The issue of disconnection in Belgium is

covered in a law of 26 March 2018 called

the “Act regarding the strengthening of

economic growth and social cohesion”,

which was introduced as part of a series

of initiatives to reform Belgian labor law.

The act made it mandatory for employers

with more than 50 employees to discuss

the issue of disconnection and the use of

digital tools with the workplace health and

safety committee. The stated purpose of

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these provisions was to ensure respect for

employees’ periods of rest, holidays, and

leave, and their balance between work and

private life.

Employees in Belgium thus have a right to

discuss issues of disconnection with their

employers, but they do not have a right to

disconnect in the strict sense of the term.

The employer can adopt disconnection

policies after consulting with the

committee but is not required to do so. The

law also does not prescribe how often the

employer should meet with the committee

but notes that it should do so regularly and

whenever there are significant changes in

the company, and whenever the committee

asks for it. In case there is no health and

safety committee in place, the trade union

delegation can play this role instead.

CHILE

Chile became the first country outside

Europe to legislate a right to disconnect

when on 26 March 2020 it adopted Law

21.220 to amend the labor code with a

new chapter on remote working and

teleworking.

The timing of the law

coincided with the COVID-19 crisis in the

country and eorts to limit the spread

of the virus, although draft legislation on

the right to disconnect had already been

proposed at the end of 2018 and approved

by the lower house of Congress in April

2019.

While the draft legislation sought to extend

the right to disconnect broadly to workers

in both the public and the private sector

to safeguard their periods of rest, leave,

and holidays, as well as their personal and

family privacy, Law 21.220 only deals with

the right in the context of remote work –

like the Italian law on smart working.

The law stipulates that an employer and

an employee can make an agreement for

flexible work arrangements, where the

employee can carry out their work partially

or completely from a dierent location

than the company’s premises. They can

also agree on flexible working hours for

the employee, while taking into account

the general stipulations on working hours

in the labor code, including a minimum

12 hours of consecutive rest between

periods of work. In this context, the time of

disconnection shall also be agreed upon.

ARGENTINA

Following in the footsteps of Chile

but building upon years of eorts and

proposals to regulate remote working

in the country, the Argentinian Senate

adopted on 30 July 2020 law 27.555

on telework.

Article 5 of the new law

introduces a right to disconnect, noting

that remote workers have a right to

disconnect from ICT-tools outside of their

working day and during holidays. The

Argentinian law is the first law globally

with specific language to protect workers

from sanctions for exercising their right to

disconnect. It further stipulates that the

employer cannot communicate with or ask

their employees to perform tasks outside

of normal working hours.

The law was published in the oicial

government bulletin on 14 August but

will only be eective 90 days after the

end of the restrictions put in place by the

Argentinian government in March 2020

to tackle the COVID-19 crisis. Prior to the

adoption of the law on telework, a draft law

(S723/2020) had been introduced in the

Senate to establish a right to disconnect

for all workers in Argentina.

The draft

included several important elements of a

comprehensive right to disconnect, such

as a prohibition of sanctions and premiums

for workers who disconnect and stay

connected, respectively, a reference to the

need for the social partners to negotiate

the modalities of the right to disconnect,

and the notion of a suspension of a right

to disconnect only in case of emergencies

or essential situations that have been

previously defined.

LEGISLATING A RIGHT TO DISCONNECT

OTHER

LEGISLATIVE

ATTEMPTS

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LEGISLATING A RIGHT TO DISCONNECT

PHILIPPINES

In January 2017 a bill was submitted to

the Philippine House of Representatives

to amend the labor code and legislate a

right to disconnect in the country.

The

bill would have expanded the definition

of working hours to include time spent

reading and responding to work-related

communications after working hours, and

would have clarified that an employee

shall not be “reprimanded, punished, or

otherwise subjected to disciplinary action

if he or she disregards a work-related

communication after work-hours”. It would

further have added an obligation on the

employer to establish the hours when

employees are not supposed to send or

answer work-related communication.

Following the submission of the bill, it

was referred to the Committee on Labor

and Employment where the matter has

oicially been pending since 17 January

2017. Later that same month, however,

the Secretary of the Department of Labor

and Employment did issue a statement

saying that it is up to the employee to

decide whether to respond to work-related

messages from their employers after

oice hours. He noted that “Answering or

ignoring texts and emails from employers

after working hours is a voluntary

engagement of an employee, and they

are not obliged to respond. The right to

disconnect is a choice of an employee.”

The Secretary added that completely

disconnecting would not apply for certain

jobs, and that the employers must be the

ones to implement a policy in accordance

with the standards of the labor code, which

will benefit both parties.

CANADA

There have been two separate initiatives in

Canada to regulate a right to disconnect.

At the federal level – which covers

federally-regulated workplaces in sectors

such as transportation, banking, and

telecommunications and which includes

around 6% of the Canadian workforce

– and at the provincial level in Quebec.

In Quebec, Bill 1097 was introduced in

the National Assembly in March 2018

to “ensure that employee rest periods

are respected by requiring employers

to adopt an after-hours disconnection

policy”.

Under this policy, employers

would have had to determine the weekly

periods when employees were entitled

to disconnect from all work-related

communication, and would also have had

to provide for a protocol for the use of

communication tools after hours. The bill

also proposed minimum and maximum

fines for employers who failed to produce

either a workplace disconnection policy

or an annual status report. The bill only

progressed to a first reading and was

abandoned in June 2018.

The federal government in 2018 issued

a report from a year-long consultation

into modernizing the federal labor code

in which the right to disconnect was

highlighted as a prominent issue. The

topic was further investigated by an

Expert Panel on Modern Federal Labour

Standards, which was appointed by the

Canadian government in February 2019.

The Panel published its findings in June

the same year and recommended that

there not be a statutory right to disconnect

as it would “currently be diicult to

operationalize and enforce.” The Panel

instead recommended that employers

covered by the labor code consult with

their employees or their representatives

and issue policy statements on the topic of

disconnection.

USA

In March 2018, Bill 0726-2018 was

submitted to the New York City Council to

amend the city’s legislation and introduce

a right to disconnect.

The bill would make

it illegal for private sector employers with

more than 10 employees to require their

workers to stay connected to work after

their formal working day ends, except

in cases of emergency. It would further

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LEGISLATING A RIGHT TO DISCONNECT

require these employers to adopt a written

policy regarding the use of electronic

communication tools outside of normal

working hours, and would prohibit any

retaliation or threat of retaliation against

an employee exercising or attempting

to exercise their right to disconnect. It

would also establish a complaints system

for workers and a system of supervision

for the New York City Department of

Consumer Aairs

tasked with enforcing

the law. The bill would also provide for

fines for employers who breach the law.

The first hearing of the bill took place

in January 2019 in the Committee on

Consumer Aairs and Business Licensing.

The response to the bill was mixed, and

the bill has since not moved in the city’s

legislative process.

INDIA

In December 2018, a bill to regulate the

right to disconnect was also introduced

in the Indian Parliament’s lower house.

Called “The Right to Disconnect Bill”, it

aims to recognize the right to disconnect

as a way to reduce stress and to ease

tensions between employees’ personal

and professional lives.

It includes

elements of (draft) bills seen elsewhere,

like protection against retaliation if an

employee does not answer calls after

the formal working day ends, and the

requirement to negotiate with employees

and unions about the terms and conditions

of disconnection. It also includes some

novel ideas: local governments would need

to provide counseling services to help

workers maintain work-life balance and to

establish “digital detox centers” to this end

as well. The bill also foresees a penalty of

1% of total company payroll if an employer

breaches the law.

In India, bills introduced by Members of

Parliament are called “Private Members’

Bills” – as opposed to bills introduced

by the government. While no private

members’ bill has become law since 1970,

these bills have influenced governments

and subsequent legislation on important

issues and are thus not without

importance.

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LEGISLATING A RIGHT TO DISCONNECT

Local governments would need

to provide counseling services to

help workers maintain work-life

balance and to establish ‘digital

detox centers’.

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LEGISLATING A RIGHT TO DISCONNECT

ANALYSIS AND

RECOMMENDATIONS

There is no question that the French law

has been a great catalyst for initiatives

around the world to legislate a right to

disconnect, as all the laws and proposals

outlined above draw upon it to some

extent. In this section we analyze the

dierent laws and proposals to develop a

set of recommendations that can be relied

upon when seeking to introduce a right to

disconnect in national legislation.

PRESCRIBE A ROLE FOR

SOCIAL PARTNERS

Social partners play a central role

in defining the modalities (practical

details) of right to disconnect policies

in the workplace, and national laws

should necessarily prescribe a role for

them in further negotiating the right to

disconnect. The French and Belgian laws

only mention the right to disconnect as

a topic for negotiations between unions

and employers without further stipulating

what the right entails. This can be feasible

in countries with high union density and

collective bargaining coverage, but it

would be advisable to include in national

laws some basic principles – like the

prohibition against penalizing workers who

disconnect – and define a minimum right

that can then be expanded upon by the

social partners.

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BE EXPLICIT

While it is possible to derive a right to

disconnect from existing working time

legislation (see below),

and while

dierent language can be used to describe

the issue of disconnection and the need for

work-life balance, the right to disconnect

should ideally be explicitly recognized as

a right and so embedded in national law.

While the right existed in French case law

before 2016, it was only after the adoption

of the new law and the specific reference

to a right to disconnect that the right was

broadly recognized and bargained into

collective agreements.

DEFINE THE RIGHT

It is advisable to provide a brief explanation

of the right to disconnect and highlight

its most important principles in law. Chief

of these is the protection of workers

who exercise their right to disconnect, in

that they should not suer any negative

consequences for disconnecting. It

could also be worth mentioning that no

favorable treatment should be aorded to

workers who are constantly connected, in

order to ensure non-discrimination in the

workplace. Protection against retaliation

is only explicitly stated in the Argentinian

law (it was also included in the draft bills

in the Philippines, India, and USA), but it is

mentioned in many collective agreements

as a foundational principle of the right to

disconnect. It may also be pertinent to

note that the right to disconnect does not

mean an obligation to disconnect, and

that exceptions to the right to disconnect

rule can be provided for in essential or

emergency situations – as long as these

have been previously defined.

PROVIDE A RATIONALE

Most of the laws that recognize a right to

disconnect also mention that the purpose

of the law is to ensure respect for workers’

periods of rest, leave, and holidays, as well

as for their personal and family life. The

benefit of including specific statements

like this in the law is that it draws attention

to the arenas that need to be protected

(daily rest periods; dierent forms of leave,

including medical leave; and holidays and

vacations) and highlight that the impact

of constant connection is not only on

workers’ private lives, but on their family

lives as well.

ANCHOR IN EXISTING

LEGISLATION

There are dierent options for linking

the right to disconnect to other existing

legal rights. The first option is to make the

obvious link to working time, as provisions

on working and rest times exist in most,

if not all, legislations. Working time

legislation normally defines what counts

as work and specifies maximum working

hours and minimum daily and weekly rest

periods. One benefit of discussing the

right to disconnect within this framework

is that it draws attention to the fact that

checking emails or messages after the

formal working day ends is actually work

and should be counted as such. Thus, if

workers check their emails in the evening

then that would count as overtime or

on-call time and they would be entitled to

compensation.

A second option is to link disconnection to

remote work, as in the case of the Italian,

Chilean, and Argentinian laws. Having a

right to disconnect when working remotely

is important, as the risk of a blurring

between private time and working time is

significant. This was also the experience

of many during the COVID-19 crisis when

millions were forced to work from home.

However, the right to disconnect should

LEGISLATING A RIGHT TO DISCONNECT

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not be limited only to workers who work

remotely; it is equally important that

those who work in a traditional oice

environment and attend to electronic

communications at home in the evening or

during weekends are covered by the right

to disconnect.

A third option is to treat the right to

disconnect as part of a set of digital rights,

which is the case in Spain. As mentioned

above, Spain’s 2018 Data Protection Act

built upon the GDPR and introduced

a range of rights for both citizens and

employees. While this approached worked

in Spain as part of their comprehensive

reform of digital rights, it may not be as

easy to implement elsewhere, in particular

outside the realm of the EU’s GDPR.

A fourth and more exploratory option

would be to link disconnection to

occupational safety and health laws

and the employer obligations to provide

workplaces free from hazards. Stress

caused by being constantly connected or

on-call and not being able to disconnect,

rest, and recover can have serious

implications for a worker’s physical and

mental health, and can inter alia lead

to anxiety, depression, and burnout.

Employer disconnection policies and

practices could thus be one way to

limit their workers’ exposure to these

occupational hazards.

IMPLICATE ALL

EMPLOYEES

The right to disconnect should be broadly

provided to all workers regardless of their

employment status (full-time/part-time/

gig/self-employed), sector of work (public/

private), employment type (managerial/

non-managerial), work location (oice/

remote), etc. Managers may not always

qualify for overtime compensation

according to national laws, but it is

important that the other principles of

the right to disconnect apply to them as

well. Managers also play a key role in the

implementation of disconnection policies

in the workplace as they can set good

examples for their teams, and are explicitly

mentioned in the French and Spanish laws.

Furthermore, considering the importance

of training with regard to the use of digital

tools and disconnection, it could be worth

including language in the national law on

this, like in the French and Spanish cases.

WHAT ABOUT REMEDIES?

The US proposal envisioned the

setting up of a complaints procedure

for workers whose right to disconnect

had been breached by their employer.

Complaints procedures have also figured

in other proposals, and it could be worth

investigating whether that would be

feasible in another country, depending on

its administrative and legal structures as

well as the role and strength of its trade

unions.

The laws that currently prescribe a

right to disconnect do not contain such

mechanisms, nor do they specify fines

for employers that violate the right. The

draft laws in India, Quebec, and the US

included explicit penalties for employer

violations, but again these proposals have

not become law.

LEGISLATING A RIGHT TO DISCONNECT

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LEGISLATING A RIGHT TO DISCONNECT

1 “Law on work, the modernization of social

dialogue, and the safeguarding of career

paths”, aka. the “El Khomri Act”, Law 2016-1088

of 8 August 2016. The law entered into force

on 1 January 2017. https://www.legifrance.

gouv.fr/aichTexte.do?cidTexte=JORFTEX-

T000032983213&categorieLien=id

2 Labor Chamber of the Cour de Cassation, 2

October 2001, No. 99-42.727

3 Labor Chamber of the Cour de Cassation, 17

February 2004, No. 01-45.889

4 Accord national interprofessionnel du 19 juin

2013 “Qualité de vie au travail”. https://www.

journal-oiciel.gouv.fr/publications/bocc/

pdf/2013/0041/boc_20130041_0000_0011.pdf

5 Ley Orgánica 3/2018, “Protección de Datos

Personales y garantía de los derechos

digitales”, 5.12.2018. https://www.boe.es/

eli/es/lo/2018/12/05/3#:~:text=Ley%20

Org%C3%A1nica%203%2F2018%2C%20

de,%C2%AB%20BOE%20%C2%BB%20

n%C3%BAm

6 Law No. 81 of 22 May 2017. https://www.

gazzettauiciale.it/eli/id/2017/06/13/17G00096/

7 Ibid., art. 19

8 https://www.corporatelivewire.com/top-story.

html?id=the-new-regulation-on-smart-work-

ing-in-italy

9 https://www.warwicklegal.com/news/326/

italy-smart-working-agile-performing-and-in-

creasing

10 Most notably decree 34/2020. It should be

noted, however, that the form of remote work

promoted by the government did not have the

same characteristics of true ”smart working”,

which entails a large degree of flexibility on the

part of the employee as to the place and hours

to work

11 Loi du 26 mars 2018 relative au renforcement

de la croissance économique et de la cohésion

sociale. https://www.ejustice.just.fgov.be/

cgi_loi/change_lg.pl?language=fr&la=F&table_

name=loi&cn=2018032601

12 Ley 21.220 Modifica el código del trabajo en

materia de trabajo a distancia, 26.3.2020.

https://www.leychile.cl/Navegar?idNor-

ma=1143741

13 https://www.boletinoficial.gob.ar/detalleAviso/

primera/233626/20200814

14 https://www.senado.gob.ar/parlamentario/

comisiones/verExp/723.20/S/PL

15 House Bill No. 4721 ”An act granting employees

the right to disconnect from work-related elec-

tronic communications after work hours”. http://

www.congress.gov.ph/legisdocs/basic_17/

HB04721.pdf

16 https://www.manilatimes.net/2017/02/01/

news/latest-stories/workers-right-discon-

nect-dole/310057/

17 Bill 1097 ”Right-to-Disconnect Act”. http://www.

assnat.qc.ca/en/travaux-parlementaires/pro-

jets-loi/projet-loi-1097-41-1.html?appelant=MC

18 Report of the Expert Panel on Modern Fed-

eral Labour Standards, June 2019, Chapter

4 ”Disconnecting from work-related e-com-

munications outside of work hours”. https://

www.canada.ca/en/employment-social-devel-

opment/services/labour-standards/reports/

expert-panel-final.html

19 Bill 0726-2018 ”A Local Law to amend the New

York city charter and the administrative code

of the city of New York, in relation to private

employees disconnecting from electronic

communications during non-work hours”, March

2018. https://legistar.council.nyc.gov/View.

ashx?M=F&ID=6150433&GUID=F941D199-

B386-40A4-9827-9A813B0FABBB

20 Now called the Department of Consumer and

Worker Protection

21 Bill No. 211 of 2018 ”The Right to Disconnect

Bill, 2018”. http://164.100.24.219/billstexts/LSBill-

Texts/AsIntroduced/2317as.pdf

22 This has been the approach in Germany, where

many collective agreements that include the

right to disconnect have been signed despite

German legislation not specifically providing for

a right to disconnect

23 See e.g. William J. Becker, Liuba Belkin, Sarah

Tuskey, “Killing me softly: Electronic communi-

cations monitoring and employee and spouse

well-being”, Academy of Management Proceed-

ings, 2018 (1)

REFERENCES

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