More breaks, scheduling and overtime entitlements for employees of federally regulated employers

Bill C-86, which received royal assent in 2018, makes numerous changes to the Canada Labour Code that will significantly affect employees’ entitlements to breaks, scheduling notices, and overtime. The changes discussed below come into effect on September 1, 2019.

Amendments to the Code

Breaks and Rest Periods

• Unpaid Breaks: Employees will be entitled to an unpaid break of at least 30 minutes during every period of five consecutive hours of work, subject to certain exceptions. If the employer requires that the employee remain at its disposal during the 30-minute period, the break must be paid.
  
  
• Medical Breaks: Employees will be entitled to unpaid breaks necessary for medical reasons. Employers may request that an employee provide a certificate issued by a health care practitioner setting out the required length and frequency of breaks. Examples justifying the need for a break may include time needed to take medication, rest or exercise.
  
  
• Nursing Breaks: Employees can take unpaid breaks to nurse or to express breast milk. Employers cannot ask for a medical note for nursing breaks.
  
  
• Rest Periods: Employees will be entitled to a rest period of at least eight consecutive hours between shifts. Certain exceptions may apply. 

New Scheduling Requirements

• Notice of Work Schedule: Employers must provide written notice to employees of their work schedule at least 96 hours before the start of the first work period, subject to certain exceptions. Employees will have the right to refuse to work any periods or shifts that start within 96 hours of the time the schedule is provided to them. However, this standard may be modified or exempted by a collective agreement. Employees cannot refuse work for a change arising from the employee’s request for a flexible work arrangement. 
  
  
• Notice of Shift Change: The employer must give an employee at least 24 hours’ written notice of a shift change. However, this provision will not apply to situations involving a flexible work arrangement or that the employer could not reasonably have foreseen.¹

Overtime

• Right to Refuse Overtime: An employee will be entitled to refuse overtime work to carry out his or her family responsibilities related to health, care or, in the case of a minor, education of a family member.² However, the right to refuse overtime is a limited right, which is only triggered if the employee has taken reasonable steps to carry out his or her family responsibilities by other means, to no avail. Likewise, employees cannot refuse to work overtime in unforeseen circumstances that present an imminent or serious threat.³
  
  
• Overtime Banking: An employer and employee may agree that overtime worked will be compensated by receiving time off with pay at the equivalent rate of not less than 1½ hours for each hour of overtime. In such a case, banked overtime must be taken within three months. For unionized employees, this period of time may be extended in a collective agreement. As for non-unionized employees, the three-month period may be extended to up to 12 months on the basis of a written agreement between the employee and employer. All banked time that is not taken in lieu of overtime within the applicable time period must be paid to the employee. 

Take-aways

In light of these new provisions, employers will have a heightened responsibility to manage their employees’ work day to ensure compliance with the Code. That said, employers should be mindful that regulations governing exceptions to these new provisions of the Code have yet to be finalized and passed into law. 

In particular, the government is in the process of providing guidance to employers on how to apply the exceptions in the Code for hours of work and overtime. However, these exceptions will be fact driven and are meant to apply in limited and unusual circumstances only. 

There is also a limited opportunity for the regulations to provide exemptions or modifications to certain classes of employees, where the overtime and scheduling requirements would be “unduly prejudicial” or “seriously detrimental” to the day-to-day operation of a business. 

As summer comes to an end, employers would be wise to review their policies and/or procedures relating to breaks, overtime and scheduling in anticipation of these changes. Employers should also consider what the impact of the new provisions will be on their operations and make plans accordingly. Further interpretive guidance will likely be provided by the government in the fall or shortly thereafter.

For more detailed information on the new September 1, 2019 amendments to Part III of the Code, please refer to our Federal Employment and Labour Guide for Employers here.