Bathroom breaks come up frequently in news stories about workers’ rights. The City of Hamilton just narrowly avoided a transit strike where bathroom breaks were a major issue. A City of Ottawa transit worker, calling himself a “whistle-blower” also recently spoke about lack of “recovery time” for drivers – aka not enough time to go to the bathroom between bus runs. Ottawa City Transit workers currently have three minutes per hour for “recovery” although drivers say that the routes are so tightly timed that they rarely are able to take those three minutes. In addition to transit jobs, lack of time for bathroom breaks is also something we see come up for workers on continuous production lines or warehouse workers. So what’s the law on time to go to the bathroom?
The Law on Breaks
While every province in Canada is governed by a different employment standards statute, most have similar provisions around hours of work and breaks. Some workplaces will be subject to federal regulation and governed by the Canada Labour Code. Federal legislation applies to industries that cross borders or with national interest – banks, airlines, telecom companies and interestingly the City of Ottawa’s transit system because it crosses into Quebec.
In this post, we will focus on the law in Ontario, which is set out by the Ontario Employment Standards Act, 2000 (ESA).
The ESA requires that employers provide employees with an uninterrupted 30-minute eating period after no more than five consecutive hours of work. The 30-minute break is unpaid. Employees have to be “free from work” and can leave the workplace. As far as breaks go, that’s it! The ESA does not require the employer to provide the employee with coffee, smoke or bathroom breaks.
Notably, the ESA does have many exceptions. For example, most professionals (lawyers, doctors, veterinarians, etc.) are exempt from many parts of the ESA. No bathroom breaks for us!
If you can’t hold it for five hours
Five hours is a long time for some of us to wait to go to the bathroom. In many instances, employers will let employees regulate their own bathroom needs. If the employee must remain at the workplace during the break then the bathroom break time is considered to be working time under the ESA.
There are other cases where an employee going to the bathroom shuts down the whole operation. This is true for drivers, cashiers, assembly line workers, parking lot attendants, etc. etc. In these cases, the employee really may have to figure out how to hold it for five hours.
An exception to the legs-crossed-for-five-hours requirement will exist where the employee can demonstrate that they need accommodation, under the Ontario Human Rights Code, for medical reasons. An employee would need to get a doctor’s note, or other medical form required by the employer, setting out that they need access to a bathroom more frequently for medical reasons. In most cases, the employer will have to comply. An employer would not have to accommodate an employee’s medical need for more frequent bathroom access if they could demonstrate that to do so would be an undue hardship.