Canada: Employee Rights and Employer Obligations on Breaks in Ontario

Employees in Canada who skip breaks during their workday are not only hindering their productivity, but the lack of recovery time could also lead to burnout, fatigue and dissatisfaction with their job, according to a study by a leading Canadian university.

University of Waterloo researchers found that employees often neglect to take breaks because they feel pressure to meet deadlines and complete tasks in a timely fashion. The study also uncovered that workers are less likely to take a break if they perceive that their supervisors discourage breaks in the workplace.

“We recognize that it may not always be possible for employees to take more breaks, but if employers can promote employee well-being by addressing the conditions that can make work unpleasant, they may be able to reduce the number of breaks needed,” said Vincent Phan, Ph.D., a researcher at test development, proctoring and analysis company Meazure Learning in Waterloo, Ontario.

Ontario’s Stance on Breaks

In Ontario—the Canadian province with the highest number of full-time workers—the Employment Standards Act (ESA) mandates that most employees must be granted a 30-minute break, or eating period, for every five consecutive hours of work. During a 10-hour shift, employees can take a second 30-minute break.

This can be stated in an oral or written agreement, according to the ESA. Meal breaks—whether paid or unpaid—aren’t considered work hours and aren’t counted toward overtime.

“This legislative requirement ensures that employees have an opportunity to take a meal break during their workday,” said Andrew Monkhouse, an attorney with Monkhouse Law in Toronto. “Importantly, it means that an employer cannot compel an employee to eat at their desk or work through this mandated break.”

Employees are entitled to use the 30-minute break however they want—they can eat, make personal phone calls, go for a walk, socialize or run a quick errand, Monkhouse said.

Employers in Ontario are not required to pay employees for eating periods, unless specified by contract, noted Gayle Wadden, chief legal officer and co-founder of Compliance Works Inc. in Toronto. However, if an employee works through their 30-minute eating period because they are unable to take a break—and they don’t get paid—then that is a violation of the ESA.

The ESA provides Ontario employees with meal breaks, not smoking or coffee breaks, said Jeff Dutton, an attorney with Dutton Employment Law and founder of goHeather, an HR tech company, in Toronto. These other types of shorter breaks are up to the employers’ discretion.

“Many employers have internal policies that provide for additional breaks throughout the day, such as a morning 15-minute paid break, an unpaid lunch and another paid 15-minute break in the afternoon,” Monkhouse said. “These additional breaks are governed by company policy rather than the ESA.”

The employer can generally dictate when an employee must take a break, subject to an employer’s duty to accommodate under Canada’s human rights legislation, Wadden explained.

“For example,” she said, “if an employee has a disability that requires them to take more frequent breaks or breaks after a certain period of time, the employer may have a duty to accommodate that schedule.”

When to Consult the Ministry of Labor

If an employee in Ontario has a work break grievance, they can file a complaint with the Ministry of Labor, Immigration, Training and Skills Development. Employees can file complaints online or in writing, and they must file claims within two years of the violation.

The Ministry of Labor can investigate complaints, Wadden said. Employment standards officers may enter any workplace—without a warrant—during regular business hours to: 1) conduct an investigation to examine, remove or copy records, question anyone involved in the incident, and ask the employer to perform a self-audit of its records and practices; and 2) perform an inspection to ensure compliance.

If the Ministry of Labor finds that employers are violating the law, it may:

• Issue a formal complaint ordering the employer to comply with the law.
• Impose financial penalties starting around $250 Canadian, multiplied by the number of employees affected.
• Charge the employer with an offense, which could be $50,000 Canadian or 12 months in prison. This is a rare circumstance, but there’s potential for significant consequences, Wadden noted.

“Often, when an employee has been deprived of an adequate eating period break, the Ministry of Labor may award an additional 30 minutes of pay as compensation,” Monkhouse said.

HR Should Ensure Compliance

Human resource professionals in Ontario have a role in ensuring that employees are receiving the breaks they are legally entitled to, Wadden said.

Legal experts say HR has a responsibility to:

• Display posters educating employees about break entitlements.
• Train managers and supervisors who are overseeing staff to provide breaks in accordance with the law.
• Identify potential issues, and address that with leadership, such as reorganizing shift schedules or hiring more staff.

Catherine Skrzypinski is a freelance writer based in Vancouver, British Columbia.