Legal Considerations for Adopting a Four-Day Workweek in Ontario

​Canadian and U.S. companies that have tested a four-day workweek reported positive results and don't plan to return to the standard five-day week, according to research from nonprofit 4 Day Week Global.

Employers thinking about switching to a four-day workweek need to consider the legal and practical implications of the change and how exactly they would implement it. In Canada, employers would need to make sure the new time structure doesn't violate human rights and other protections, including specific provincial laws, legal experts note.

Legal considerations "will depend largely on what other changes are being made along with the change to a four-day workweek. If this means employees are working longer hours during those four days, employers will need to be cognizant of the meal break and rest requirements in employment standards legislation, as well as daily overtime requirements [that] exist in some provinces," said David Fanjoy, a lawyer with McMillan in Toronto.

If longer hours are not contemplated and a pay reduction is associated with the new four-day workweek, employers will want to carefully review their liability for constructive dismissal claims, he said.

Remembering Rights, Standards

Employers adopting four-day workweeks don't necessarily stretch eight-hour workdays to 10 hours or cut pay, said Lindsay Koruna, a labor and employment paralegal with SpringLaw in Toronto. A few of her firm's clients have implemented a four-day workweek structure, she said. The standard move the firm has seen clients make is changing to a 32-hour workweek—eight hours a day for four days—while keeping the same pay and benefits from the 40-hour workweek, she said.

Using this model, employers sometimes reduce employees' nonessential tasks so they can focus on their primary work, Koruna explained.

The four-day workweek remains a fairly new trend in Ontario that gained traction during the pandemic. As business started returning to normal after the shutdown, employers saw employees were healthy and happy with a shorter workweek that benefited both the business and workers, who were more productive and efficient, she said.

The four-day workweek can be adopted for either an in-office or remote environment, Koruna added.

Among other considerations, employers in Ontario moving their companies to a four-day workweek need to keep in mind the province's Employment Standards Act, which sets limits on work hours and establishes the overtime threshold, she said.

The act establishes maximum hours to be worked weekly, not daily, so employers can require more than an eight-hour workday. Overtime kicks in after 44 hours in the week, so it wouldn't apply to most four-day workweek models, Koruna said.

Another big concern in the province is the Ontario Human Rights Code, which stipulates protected grounds for nondiscrimination and requires accommodations from undue hardship. This could involve people with disabilities, family status or religious practices who can't work beyond an eight-hour day; employers must accommodate them and could do so by offering different work hours, Koruna added.

Obtaining Consent

Employers should attend to employment contracts when changing to four-day workweeks, Koruna said. Employers working with binding agreements can make changes only with the parties' consent, including changes in work hours. They'll need to speak with employees and obtain written consent. If they don't and implement the change anyway, an employer could face a constructive dismissal case.

As for the practical aspects involved in such a switch, "the main considerations will of course be how a four-day workweek will affect productivity, morale and the overall functioning of the workplace," Fanjoy said. "There are always going to be lots of workplace-specific issues to consider."

A big decision for companies making the switch is exactly how they'll implement it.

Businesses might consider whether they need to be accessible to customers five days a week and can run productively if not accessible for an entire day, Koruna added. If an employer plans to stagger schedules to maintain a five-day workweek, it will need to determine which positions work on which days and if the company is meeting client needs.

If it's a client-facing business, the employer will need to consider if a shortened week will limit productivity with clients, she said.

Research from 4 Day Week Global found that no employers among 41 U.S. and Canadian companies that piloted the shorter workweek planned to go back to five days. The businesses saw an average 15 percent rise in revenue over the six-month pilot and gave the trial a positive 8.7 out of 10.

Employee outcomes were positive as well, with 95 percent wanting to continue a four-day workweek after the pilot and nearly 70 percent reporting lower burnout, according to the organization.

Dinah Wisenberg Brin is a reporter and writer based in Philadelphia.