When Your Employee Ghosts: Abandoning Employment

Sometimes employees just kind of stop coming to work, leaving employers scratching their heads and wondering where they stand and what to do.

Absence Due to Illness

In many cases when an employee stops coming to work they will tie their absence to illness. Ever get this text? “hey can’t come in today, am sick.” Often an employee will call or text or email in sick for the first few days and then stop communicating. 

The connection to illness complicates the matter for employers, who have a duty under the Ontario Human Rights Code (“the Code”) to accommodate employees with disabilities up to the point of undue hardship. 

Is an illness a disability? Not necessarily. A cold or flu will generally not be considered a disability under the Code, but this doesn’t mean that employers can just decide an employee who is off sick for a few days has left their job or quit. 

Requesting More Information

Employers have a right to information from an employee about their health status and accommodation needs as they relate to the job. If an employee asserts that they are ill and stop coming to work, it is reasonable (and legal) for an employer to request a doctor’s note.

Employers should make the request detailed so that the doctor’s note can be useful to them. While employers are not entitled to private medical information, such as a diagnosis, they are entitled to know when the doctor expects the employee will be back at work, what accommodations they might need and so on. 

The key to respecting an employee’s private health information is to ensure that the information requested is connected to the employee’s ability to do their job. For example, if a job requires an employee to drive a vehicle for 8 hours a day, asking if the employee has any restrictions with respect to driving a vehicle for 8 hours a day is perfectly reasonable. 

And Getting No Information

So employers can request medical information, but it’s not uncommon for employees not to provide it. Then what? Employees are required to co-operate with their employer with respect to their accommodation needs. 

In order to be accommodated, which in the instance of illness due to absence will mean having their job held for them until they are well enough to come back, employees need to:

  • Request the accommodation – “hey, I need time off” 
  • Demonstrate the need for the accommodation and provide specifics of that need – provide a medical note with details of prognosis, restrictions etc. 
  • Co-operate with respect to accommodation – the employee won’t necessarily get the exact accommodation they want 

True Ghosting – What if the Employee Just Doesn’t Respond? 

If an employee truly just ghosts, an employer may be able to take the position that the employee has abandoned their job. The legal test for abandonment is as follows: 

Do the statements or actions of the employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract?

Where an employee does not respond to an employer, does not keep in touch and fails to provide medical evidence or updates, the test for abandonment may be met. Where an employee is deemed to have abandoned their job, it’s as if they have quit and they are not entitled to any notice or severance. In all cases, employees still need to be paid out for the time they worked and any accumulated, but unused, vacation. 

If you’re an employer with a ghosting employee, get in touch for a consultation. We can help you sort through your options.  

Formal Equality vs. Substantive Equality: When Equality Doesn’t Mean Equal Treatment

Happy Black History Month Canada! Black History month has us thinking about equality and what workplaces can do to increase their equality and diversity. We all know by now that diversity is good for business. 

The Canadian law, through various devices and broadly speaking, attempts to promote equality and inclusion. A question that often comes up when employers are thinking about increasing diversity in their workplaces is if favouring minorities when hiring is really treating everyone equally. Doesn’t equality mean we treat everyone, black, white and purple the same? Actually, no! Read on. 

Treating Everyone the Same Does Not Necessarily Lead to Equality 

We don’t all start off at the same starting line in life. When we measure people by the exact same metrics often those who are from groups that are historically disadvantaged will get left behind when competing against their more privileged peers.  However, in Ontario, favouring minorities for a position could still land you in breach of the Ontario Human Rights Code, because you would be discriminating based on race (or any other prohibited ground) in your hiring decision. 

Enter affirmative action! The Code allows employers to develop “special programs,” which will allow them to discriminate based on a protected group, where the objective is to promote the success of a historically marginalized group. 

Special Programs Under the Code

Section 14 of the Code states that it is not discriminatory to put in place a program if it is designed to: 

  • relieve hardship or economic disadvantage
  • help disadvantaged people achieve, or try to achieve, equal opportunity or
  • to contribute to the elimination of the infringement of rights under Part I 

A program must satisfy at least one of these points to be a special program under the Code.

In order to discriminate in this way, employers need to apply to the Human Rights Commission to designate their program as a “special program” under the Code. 

Special Employment

Section 24 of the Code also allows for discrimination with respect to employment where an organization is primarily engaged in serving the interests of persons identified by a prohibited group of discrimination. In these instances, identification with a specific Code-protected group is a genuine qualification for the job. For example, a woman’s shelter would be justified in discriminating in hiring by only hiring women because they are a special interest organization serving women. 

Takeaways 

Creating real substantive equality in our workplaces is definitely tricky. The Ontario Human Rights Commission provides lots of useful information, including this guide. If you’d like to work with us to create a special program or increase diversity in your workplace, get in touch to book a consultation. 

Why You Need An Employee Handbook – The Devil Is In The Details

What’s an Employee Handbook?

An employee handbook is a document where an employer can keep all their policies, procedures and other information an employee needs to have. Often, it forms a part of the employee’s contract, and employees are required to review the handbook and sign their copy to acknowledge their understanding. 

Why Do You Need an Employee Handbook?

A good employee handbook sets a business up for success, in terms of setting expectations and managing the workforce. Handbooks give employees the lay of the land. They set out the corporate culture, cover off legal obligations (like mandatory policy requirements) and communicate information like sick day allotments, benefits, and what to do if you’re running late, all in one place. 

But I Only Have a Few Employees!

Smaller employers who manage with the do-it-yourself approach to HR especially need handbooks! Without an HR person to go to, the handbook can fill a vital role in communicating workplace information and policies to the workforce.

Staying Current

Laws change and business strategies evolve. It can be tough to keep up and make sure that what is communicated is still current – hello Bill 148 rollercoaster! Employers should make sure that the handbook is part of a regular business health check-up. The outdated handbook may give employees more or less information than the law requires which can cause problems.

Handbooks capture the details, but they can also be given the force of contract – enhancing the clarity and certainty of the employment relationship. Whatever legal route is taken it should be deliberate. 

If you would like to engage SpringLaw for a consultation about creating or revising your employee handbook, get in touch!

Are Changes to Canada’s Privacy Law Landscape on the Horizon?

It looks like 2020 might be the year where Canada catches up in the realm of privacy and data protection laws. These will likely have a ripple effect throughout the workplace.

Mandates Letters

In December 2019, PM Trudeau sent mandate letters to the Minister of Innovation, Science and Industry, the Minister of Justice and the Minister of Canadian Heritage asking them to get to work on enhancing the protection of Canadians’ personal information. 

The mandate letters focused on asking the various Ministers to work towards advancing Canada’s May 2019, Digital Charter (“the Charter”). The Charter sets out ten principles intended to address and respond to the impact of the digital revolution on Canadians and the Canadian economy. The government’s website sets out these principles and various action items in an accessible way on their website. Here are a few highlights:

  • Universal Access 
  • Control and Consent 
  • Safety and Security 
  • Transparency, Portability and Interoperability 
  • Strong Enforcement and Real Accountability 

Enacting these principles will require some legal teeth, which is where the mandate letters come in. 

Warnings from the Privacy Commissioner

The Office of the Privacy Commissioner of Canada warned in his 2018-2019 Annual Report to Parliament on the Privacy Act and the Personal Information Protection and Electronic Documents Act that “the world is now passing us by” when it comes to privacy protections. 

Rapid change has never been a forte of governments and it has evidently been difficult for governments the world over to keep pace with the changes the digital age has brought. We are reminded of the bizarre questions asked by some members of the US congress during the Facebook hearings over Cambridge Analytica. Some members were still clearly in the stage of digital infancy, learning to use their email…

What to Expect

So what can we expect to come from Trudeau’s mandate letters? Much of Canada’s patchwork privacy law speaks to best practices – these could be replaced with enforceable rights and real obligations. Changes could include the right for privacy commissioners to conduct privacy inspections, issue orders and more easily enforce financial penalties. 

While no definite timeline has been set for re-vamping Canada’s privacy legislation, doing so has been called “a top priority.” Public consultations are expected and “targeted stakeholder engagement”  has begun. 

Data breaches are becoming more and more common. While complying with changing privacy laws will remain essential, organizations may also want to think beyond legal compliance and be proactive when it comes to privacy and data protection. 

Public Health Emergencies and the Workplace

The Wuhan Novel Coronavirus (or 2019-vCoV) is a public health emergency in Canada with confirmed cases in Ontario. This has led many employers to ask how they should manage their employees’ concerns, while still trying to operate “business as usual”.  On the one hand, employers are obligated to provide a healthy and safe work environment, while on the other, they must respect an employee’s privacy and ensure that their responses to any health or safety concerns do not violate human rights legislation.

Stay Well Informed

Because an employer’s legal obligations continue during a public health emergency, clear and accurate information and communication are vital. Employers should remain informed of the latest public health information and communicate essential information and specific expectations to their employees. For example, relaying the importance of handwashing and hand sanitizing, while maintaining well-stocked supplies for doing so. 

Depending on employee circumstances, employers may need to implement more specific precautionary measures to protect the workforce. Such measures should be reviewed and updated as official sources of information change. Because of the uncertainty around the Coronavirus, a cautious and conservative approach will be defensible by employers, so long as they act reasonably, and base their decisions on official sources of information. 

The following websites should be used as official sources for up-to-date information:

World Health Organization

Public Health Agency of Canada 

Ontario.ca

Public Health Ontario

Toronto Public Health

Collaborate With Employees

Given that, in some cases, the Coronavirus has led to a spotlight on individuals’ personal health status, and the stigmatizing of the Chinese community, employers should approach the issue with discretion and sensitivity. Employers should also designate an appropriate person within their organization to field employee questions and concerns. 

While ultimately the employer will decide what precautionary measures are required and appropriate, a two-way conversation with an employee about appropriate precautionary measures is advisable whenever possible. For example, if an employee has travelled to an affected area, discuss collaboratively what a productive period of remote work could look like, and how such a modified work arrangement might be communicated to co-workers. Based on recent official sources, symptoms of the virus may present themselves up to 14 days after exposure, therefore it is reasonable that an impacted employee be asked to work remotely for 14 days. In some cases, the employee should be required to produce medical documentation confirming their clearance to return to the workplace. 

Employers may benefit from a strategic discussion with employment law counsel to develop precautionary measures or incident responses that are compliant with health and safety, privacy, and human rights legislation. If this is the case for your workplace, please get in touch.

Recent Changes in Ontario Litigation Forums

On January 1, 2020, changes were implemented to the Simplified Procedure under Rule 76 of the Ontario Rules of Civil Procedure, as well as in Small Claims Court. The changes were brought to increase access to justice for individuals and businesses by reducing the cost of resolving disputes.

New Limit in Small Claims Court

From now on, all claims of $35,000 or less are brought to Small Claims Court, an increase from the previous $25,000 limit. The small claims process is much more streamlined than a proceeding in Superior Court – after pleadings are closed, the parties schedule a settlement conference, and if a matter does not settle, a hearing is scheduled. Starting an action in Small Claims Court is also less risky for the potential plaintiff – if a plaintiff loses, the worst-case scenario is that this plaintiff will have to pay 15% of the award, a maximum of $5,250 in Costs to the other party. This limited risk can be attractive to plaintiffs with limited resources. 

New Limit for Simplified Procedure

All claims higher than $35,000 and under $200,000 must now follow the Simplified Procedure, an increase from the previous $100,000 limit. Other changes to the Simplified Procedure include capping Costs awards to $50,000, capping disbursements to $25,000, implementing expedited deadlines, and limiting the trial to 5 days, among other changes. 

Final Thoughts

Given the general apprehension surrounding litigation, these recent changes will be attractive to potential plaintiffs wanting more certitude on legal fees, potential liability, and time, and may result in more actions being commenced by those who may have otherwise just let it go. Plaintiffs with claims in the higher dollar figure ranges may choose to lower their claims in order to fall under the Simplified Procedure or the Small Claims Court. This means more actions being brought to Small Claims Court or under the Simplified Procedure. Given the capped Costs liability, we may see plaintiffs less likely to settle and more matters being taken to trial. In turn, this new reality could impact the way employers address current or potential disputes with their employees. Only time will tell!

If you’re looking for counsel on a litigation matter, please get in touch!

What does it mean to be in a union?

We often get contacted by employees who are members of unions and employers looking to better understand the pros/cons when faced with unionization. What does it mean to be in a union?

Collective Agreement vs. a Contract

One big difference between unionized and non-unionized employees is that the employment relationship with the employer is governed not by individual contracts but by a collective agreement. The collective agreement will contain the terms and conditions of employment applicable to all employees who are covered by that collective agreement. Generally, this means that all employees within certain classes will be treated the same, paid the same etc.

Non-unionized employees have individual agreements with the employer (employment contracts) and can, therefore, have individualized terms of employment. In a non-unionized workplace, an employer can pay employees who do the same job different amounts, let them have different work schedules etc. 

Collective vs. Individual Negotiations 

Because a unionized employee’s relationship with the employer is governed by the collective agreement, if they want a raise, this would have to be negotiated through the collective agreement process and this would mean a raise for everyone in their class. The union would also have to determine whether or not a raise was worth asking for. Unionized employees generally cannot get special or individualized treatment from the employer. 

A non-unionized employee can negotiate on their own behalf and an employer is allowed to treat employees differently (subject of course to disallowed human rights considerations). If a non-unionized employee wanted a raise, they could just ask for one and the employer could grant one, generally without it having larger ramifications for the wider workforce. 

Advancement

Unions are all about fair and equal treatment. Collective agreements will usually contain specific provisions by which an employer is allowed to promote an employee. Seniority is generally very important and in many cases, the employer will have to give the promotion to the most senior applicant, provided all applicants are equally qualified. 

Perks like vacation scheduling, shift selection and overtime opportunity are generally allocated in order of seniority, with the most senior employees getting the first picks. 

Check out some union reality highlights from this job ad for a City of Ottawa Bus Operator: 

  • “expect no summer vacation for up to 10 years” 
  • “It has not been uncommon for new operators to work weekends for 5 to 10 years”
  • “Junior Operators will work 12 out of 14 days for the next 3 –5 years”

The ad caught media attention for its honesty. These are the realities of a unionized workforce – the perk being that after 10 years, once you get the first pick of vacation, you’ll always have summers off. 

The Power for All vs. The Power of One

After learning that unionized employees can’t ask for their own raise or get a vacation in the summer for 10 years you might be wondering why anyone would want to be in a union. Unionized employees generally have a lot more power in the employment relationship, and a lot more job protection, than their non-unionized friends. 

Unionized employees, for example, can generally only be terminated for cause or where a position is really and truly eliminated. Non-unionized employees can generally be terminated for any reason, as long as they are provided with notice. 

Unionized employees have their union to go to bat for them if they are treated unfairly by the employer. A non-unionized employee will generally have to pay a lawyer out of their own pocket if they need legal help in their employment relationship. 

Because unionized employees act as a group, they have the power to seriously disrupt the employer’s operations (ie. STRIKE) and therefore they have more power in the employment relationship as a collective than just one employee. 

What if my union isn’t doing what I want?

We often hear from employers facing potential unionization, as well as employees who feel that their union isn’t representing them fairly. We are occasionally retained by some of these individuals to provide legal advice behind the screens, but an individual unionized employee cannot be represented by their own lawyer in their relationship with the employer. They must be represented by the union. The only way around this fact is by making a “Duty of Fair Representation Complaint” to the Labour Relations Board. It’s a big deal. 

If you’d like to book a consult to chat about your employment relationships, be it unionized or non-unionized get in touch

Our Induction into the Clawbies Hall of Fame!

We are super excited to announce that our blog has been inducted into the Clawbies Hall of Fame! Our regular readers will know what a Clawbie is because, well, we’ve won before. The Clawbies are the Canadian Law Blog Awards. Since 2006 they have been showcasing quality Canadian legal blogging. Our blog won previous awards in 2019, 2018, 2013, 2011. Induction into the Hall of Fame is a big deal for our little blog – kind of like a lifetime achievement award…tissue, please! 

To be inducted into the Hall of Fame we had to have a least three past wins, check! Being Hall of Famers means we can no longer win future Clawbies.   

We absolutely love blogging. It allows us to be creative, have a little fun and also, we hope, be helpful and informative. We are not a law firm that believes in hoarding the secret sauce. While most legal situations can benefit from individualized legal advice, we also use our blog as a way to bring relevant workplace legal information to those who may not be ready to hire a lawyer. 

Thanks to all of our readers and supporters. Here’s to another decade of sharing content, resources and tips to navigate the modern workplace law landscape.

Notable Cases of the Year

As we shut the door on 2019 and begin 2020, we at SpringLaw thought this was a good time to look back on some of the biggest 2019 employment law cases in Ontario! Here is our list of the top 5 cases of 2019 and their key take-aways for employers and employees alike.

1. Colistro v. Tbaytel, 2019 ONCA 197

The facts in this case are fairly similar to other harassment cases we see nowadays, but what makes this case truly unique is the devastating cost consequences for the plaintiff employee. 

Ms. Colistro had been employed at Tbaytel for over 22 years when she was informed that her former supervisor, Mr. Steve Benoit, would be returning to the company. Mr. Benoit was terminated in 1996 because Ms. Colistro and a number of other employees accused him of sexual harassment. When Ms. Colistro expressed her concerns about Mr. Benoit her employer informed her that they could move her to a different location, a remedy that proved unsatisfactory for Ms. Colistro. The news of Mr. Benoit’s return caused Ms. Colistro a great deal of stress and ultimately led to her departure. Ms. Colistro sued Tbaytel for constructive dismissal.

The trial judge provided Ms. Colistro with 12 months in wrongful dismissal damages, which amounted to $14,082.00, once salary continuation and LTD were accounted for, and $100,000.00 in Honda damages for the bad faith manner of dismissal. 

The Court of Appeal dismissed both the appeal and cross-appeal and did not find in favour of Ms. Colistro for her intentional infliction of mental distress claim. The court concluded that Thaytel could not have known that their actions would cause serious psychological injury. While her constructive dismissal claim was successful, Ms. Colistro was left with a massive costs award ($200,000.00) and was required to pay the costs of her lawyer because she failed to accept a settlement offer from Thaytel that exceeded her trial award. This case is a classic example of how failing to engage in measured negotiation can lead to awful consequences for a plaintiff – even when they have a strong case!

2. Merrifield v. Canada (Attorney General), 2019 ONCA 205

Merrifield is another significant case because it is the first Canadian appellate court decision that has confirmed that a separate tort of harassment does not exist.

Mr. Merrifield, an RCMP officer, alleged that his career and reputation were damaged by his superiors after they discovered that he sought the Conservative party nomination in his riding. After learning of his participation in this nomination, the RCMP advanced an investigation into Mr. Merrifield. Mr. Merrifield claims that he was subjected to harassment and career-ending character assassination which caused him to experience extreme emotional distress. Mr. Merrifeild sued the RCMP for committing the common law tort of harassment. 

The Ontario Court of Appeal determined that the tort of harassment does not exist and that plaintiffs experiencing harassment should seek remedies under the tort of intentional infliction of mental distress (IIMD). The test for IIMD is: 

  1. Flagrant and outrageous conduct;
  2. Calculated to harm the plaintiff; and
  3. Caused the plaintiff to suffer from extreme and severe emotional distress. 

Employers should keep in mind that while the tort of harassment does not exist they are still required to provide their employees with a harassment-free workplace as employees still have the option to pursue an IIMD claim if they are experiencing severe mistreatment at work. 

3. Heller v. Uber Technologies Inc. 2019 ONCA 1

The Supreme Court of Canada’s decision in this case will have serious implications for employers who wish to include mandatory arbitration clauses into their contracts. In fact, the decision in this case has the potential to create changes in other types of contracts where there are huge power imbalances between the contracting parties (think: consumer contracts). 

Heller is a class action case initiated by David Heller, an UberEats delivery driver who argued that he and his fellow workers are employees and thus entitled to the basic benefits provided under the Employment Standards Act. Uber’s response was to stay Mr. Heller’s claim and insist that the only appropriate venue for this dispute was through arbitration, a requirement under the service agreement that drivers must sign before working on the Uber platform. This service agreement includes a clause that requires employees to go through a mandatory arbitration process in Amsterdam in order to settle their disputes with the company. While the Superior Court ruled that the arbitration clause was valid, the Ontario Court of Appeal overturned the decision of the motion judge and ruled that the clause was “unconscionable at common law” and thus invalid. Uber appealed the Court of Appeal’s decision to the Supreme Court of Canada. We await that decision. 

Up until now, Canadian courts have insisted that contracts that are entered into freely by both parties are enforceable under the law, but the SCC decision in Heller may add some exceptions to this longstanding principle. 

4. Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512

The decision in Dawe is significant because it reaffirms a notice period cap of 24 months, even where employees are very senior, near retirement and have long service to a company. 

Mr. Dawe was a 37-year employee in a senior management role at the time that he was terminated without cause.  Mr. Dawe sued for wrongful dismissal and the motion judge ruled that he was entitled to 30 months’ notice, in addition to bonus payments throughout the notice period. The motion’s judge reasoned that the employer’s decision to end Mr. Dawe’s employment at the age of 62 was “tantamount to forced retirement” and thus 30 months was appropriate in light of the exceptional circumstances. Equitable Life appealed the ruling.

On appeal, the Court of Appeal reduced the notice period to 24 months because they did not agree that the circumstances were exceptional enough to warrant an award above 24 months. The Court relied on another case, Lowndes v. Summit Ford Sales Ltd., to show that the 24 month notice period already accounts for factors such as the employee’s length of service and age at the time of termination when awarding a 24 month notice period.

Determining the factors necessary for an award higher than 24 months is difficult and will depend on the facts of the case, but the decision in Dawe shows that simply being an older adult in a senior role with a long service does not cut it.

5. English v. Manulife Financial Corporation, 2019 ONCA 612

Where once it was thought that employers could simply accept an employee’s notice of resignation, English shows us that employers should make inquiries if they want to avoid a potentially complicated situation down the line. 

In English v. Manulife Financial Corporation, Elisabeth English, a 66-year-old employee, provided her employer, Manulife Financial, with her resignation after she became aware of Manulife’s intention to change the office computer system. Manulife accepted her offer but informed her that she could rescind or reconsider her resignation. When she heard that the company was going to indefinitely suspend the conversion to the new computer system, she attempted to rescind her resignation. Manulife chose, instead, to accept her resignation. 

While the Superior Court found in favour of Manulife, on the grounds that English’s notice of retirement was clear and unequivocal, the Court of Appeal disagreed with the lower court’s finding, deciding instead that English’s retirement letter was not clear and unequivocal; therefore, she was entitled to withdraw it. The Court of Appeal reasoned that at the time Ms. English informed Manulife of her intention to resign, she also told them she was unsure whether she wanted to resign. Her employer responded by saying that she could change her mind at a later date. 

When Ms. English changed her mind about her resignation, she believed, based on her supervisor’s assurances, that she could easily rescind her resignation. Manulife’s decision to take that option away from her was the nail in the proverbial coffin of their case. It is very possible that the case would have gone in a different direction if the supervisor simply made inquiries into her decision, reminded her that her decision was final and accepted her resignation in the moment. Employers should consider instituting a simplified “resignation acceptance” procedure so that supervisors don’t make one-to-one promises that may make them vulnerable to these kinds of challenges from employees.

The new year is bound to bring with it even more interesting decisions and we look forward to sharing the lessons from these cases with you here! Wishing you all a prosperous 2020!

Please get in touch if you require any legal counsel in the new year.

How to go to the bathroom at work

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

The Ontario Ministry of Labour has a nifty tool and a handy guide if you’d like to learn more about hours of work and rest periods or get in touch to set up a consultation with us!

LexBlog