30 minute breaks – Canada Labour Code, part III – Division I - 802-1-IPG-100

1. Subject

This IPG aims to interpret the scope of section 169.1 under Division I of Part III of the Canada Labour Code (Code) and to clarify the associated expression "break of at least 30 minutes during every period of 5 consecutive hours of work".

Note: This IPG does not apply to classes of employees who were granted an exemption and/or modification to specific provisions as per the Exemptions from and Modifications to Hours of Work Provisions Regulations.

2. Point

The following provision has been added to Part III of the Canada Labour Code:

• break - 169.1

This amendment took effect on September 1, 2019. It is necessary to ensure a consistent interpretation and application nationwide of the expression "break of at least 30 minutes during every period of 5 consecutive hours of work". To that end, the following questions will be addressed:

• what is meant by the expression "break of at least 30 minutes during every period of 5 consecutive hours of work"?
• how does that expression apply to different work periods?

3. Interpretation

"Break" means a short period of time during the work period when an employee is released from his obligations to the employer (or is not under the control of the employer) and may freely attend to personal matters in or near his work place.

"Consecutive hours" refers to hours that follow one another without interruption.

The Code provides at least one break every 5 consecutive hours of work, of a minimum duration of 30 minutes. Essentially, the break must be taken before the 5 hours are up (4.5 hours of work and 30-minute break). Thus, the break cannot be split (for example into two 15-minute breaks).

Every employee is entitled to 30-minute breaks, except those who are excluded from the Code's hours of work provisions, namely employees who are directors or heads, or exercise management functions, or architects, dentists, engineers, lawyers and medical doctors.

Generally, the 30-minute break cannot be postponed or cancelled, even if the employee specifically requests it. However, the Code provides for an exception that enables the employer to postpone an employee's break. That exception only applies when the employee is required to work to deal with a situation that the employer could not have reasonably foreseen and that presents or could reasonably be expected to present an imminent or serious threat under paragraphs 169.1(2)(a), (b) or (c). To ensure that the exception is applicable, the employer must conduct the test in IPG 091 to 094. If the exception is determined not to be applicable, the employer may not request that the employee work during his 30-minute break.

Given that the employee is not under the control of his employer during his 30-minute break, that break is not considered work time. Consequently, the 30-minute break is not paid. However, if the employer requires the employee to remain available during the break, for example if the employer asks the employee to remain at the work place during the break to answer the phone, then the employee must be paid for the break.

Example 1

An armoured truck driver transporting securities would be entitled to his 30-minute break in his first 5 consecutive hours of work. However, for obvious reasons, the employer may request that he remain in the truck while taking his break. In that case, he must be paid.

Example 2

A bank employee, has difficulty getting to work on time in the morning. She asks her employer if she could take her 30-minute break at the start of her work day. The employer reviews the request but denies it because essentially it would require that the employer give her two 30-minute breaks in the day. The employer can refuse because its obligation under the Code is to grant one 30-minute break in a period of 5 consecutive hours of work, in order to avoid giving two 30-minute breaks in the day.

Example 3

An employee works from 8 am to 4 pm, and takes his 30-minute break between 12:00 pm and 12:30 pm. In doing so, the employer ensures that there will be a 30-minute break in every period of 5 consecutive hours of work.

If the employee is required to work 2 hours of overtime at the end of the day, the employer is required to grant him a second 30-minute break.

Example 4

An employee who works from 8 am to 6 pm, is entitled to two 30-minute breaks; one break during every period of 5 consecutive hours of work. Therefore, 9 hours of work and 2 X 30-minute breaks.