The Law about Hours of Work
In Ontario, the Employment Standards Act (“ESA”) sets out the maximum daily and weekly limits on the hours of work. In general, the maximum number of daily and weekly hours are:
- Eight (8) hours in a day or, if the employer establishes a regular work day of more than eight hours, the number of hours in its regular work day; and,
- 48 hours of work per week.
An employee’s daily hours of work may exceed the maximum limits in the ESA if the employer and employee agree in writing. Likewise, an employee’s weekly hours of work may exceed the maximum limits if (a) the employee agrees, and (b) the employer obtains approval from the Director of Employment Standards. In addition to the employee’s agreement and the Director’s approval (for excess weekly hours), an employer must provide the employee with the most recent documents published by the Director of Employment Standards on Hours of Work.
If you are looking to apply to the Director of Employment Standards for excess weekly hours, or any reason, please do not hesitate to reach out to me.
Rescinding an Agreement for Excess Work
An employee can revoke an agreement to work excess hours on two weeks notice to the employer. An employer can revoke an agreement to work excess hours on reasonable notice to the employee.
Hours Free from Work
In general, an employee must receive at least:
- eleven (11) consecutive hours off work each day;
- eight (8) hours off work between shifts (if combined shifts exceed thirteen (13) hours);
- either twenty-four (24) consecutive hours off work every week, or forty-eight (48) hours off work in every consecutive two-week period;
Daily Rest: the 11 Hour Rule
The daily rest requirement is mandatory. An employee and an employer cannot agree to less than eleven (11) consecutive hours off work each day. This maximum applies even if there is an excess daily hours of work agreement or an excess weekly hours of work agreement approved by the Director of Employment Standards.
This rule does not apply, however, to an employee who is on call and called in during a period in which the employee would not otherwise be expected to perform work for his or her employer.
It also does not apply in “exceptional circumstances”. The exceptional circumstances exception only applies if the employee is required to avoid serious interference with the ordinary working of the employer’s establishment or operations:
- To deal with an emergency.
- If something unforeseen occurs, to ensure the continued delivery of essential public services, regardless of who delivers those services.
- If something unforeseen occurs, to ensure that continuous processes or seasonal operations are not interrupted. or,
- To carry out urgent repair work to the employer’s plant or equipment.
Breaks and Lunch
Eating Periods, a.k.a. Lunch Breaks
An employer must provide an employee with an uninterrupted 30-minute eating period (lunch break) at intervals to ensure that the employee goes no more than five consecutive hours of work without a break to eat. If an employee and an employer agree, then the employee can be given two eating periods (i.e. two 15-minute breaks) in each consecutive five-hour period.
Unless the employee’s contract says otherwise, lunch breaks are unpaid. Further, lunch breaks are not included for the purpose of calculating hours of work, rest provisions, overtime pay or minimum wage entitlements under the ESA.
Coffee and Other Breaks
Besides eating periods, employees are not entitled to any other breaks.
If an employer elects to give other breaks to an employee then that break must be paid and included in calculating hours of work, rest provisions, overtime pay or minimum wage entitlements under the ESA, unless that employee is not required to remain at the place of employment.
Contact Justin W. Anisman
Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.