Reasonable steps - 802-1- IPG-095

1. Purpose

Guidelines on the application of the expression "reasonable steps" set out in section 174.1 with respect to the right to refuse to work overtime in order to fulfil a family responsibility.

2. Item

The following amendment has been made to Part III of the Canada Labour Code (Code).

• limited right to refuse to work overtime in order to fulfil a family responsibility - 174.1

This amendment comes into force on September 1, 2019.

The interpretation and application of the expression "reasonable steps" must be standardized nationally. To this end, the following questions will be addressed:

• what does the expression "reasonable steps" mean?
• what criteria will be considered to answer this question?

3. Interpretation

"Reasonable steps," in this context, means all concrete efforts or all actions taken, moderately but sufficiently, by an employee in order to try to fulfil a family responsibility in a way that would not prevent the employee from working overtime, and that does not place an excessive constraint on the employee.

The requirement on the employee to take reasonable steps is stipulated in order to limit a systemic and abusive use of the right to refuse to work overtime. It helps to prevent the negative consequences for an employer with an increased need for employees to work overtime, while giving the employee, under certain conditions, the possibility of fulfilling certain family responsibilities. 

The employee has no obligation of result. However, he must be able to show, when invoking a family responsibility to justify the exercise of his right to refuse overtime, that he actually tried to resolve the family responsibility issue encountered.

Ideally, the employee should make two or more attempts in order to justify his refusal to work overtime, but the number of attempts should not be a criterion considered in isolation. Strict application of the number of attempts could disadvantage employees with a limited family or social network. Moreover, in some situations, a single attempt could be sufficient and, in rare cases, no attempts could also be acceptable. 

Each situation will therefore be examined individually, based on different factors and the specific context. In addition, the inspector should try to apply the expression "reasonable steps" in a liberal and non‑restrictive manner.

Essentially, any employee who, through concrete actions, tried to resolve their situation but was unsuccessful, and who is able to show evidence of those actions to the inspector, would be deemed to have met his obligation. This would not be the case for an employee who found an alternative solution but simply preferred not to use it.

4. Examples

• An employee, able to show that he exchanged text messages with one or more of the members of his family to try to get them to pick up his child from daycare by 6:00 p.m., would have met his obligation in order to exercise his right to refuse to work overtime if none of the family members were available to pick up the child on that day. 
• An employee must accompany her sick mother to the doctor after her normal shift. Despite several requests to her sisters and brother by email and phone, no one was able to go in her place. She therefore had to refuse the overtime requested by the employer on that day. The employee would be deemed to have taken reasonable steps. 
• An employee is a parent of an autistic child and was called by his child's school to pick him up. The employee tried unsuccessfully to get the child's other parent to pick him up at school; however, she was not available. The child was in crisis and could not be cared for by anyone else given his medical condition. The same day, the employer asked the employee to remain at work and work overtime to repair machinery but the employee had to refuse and invoked a family responsibility. In this case, this single attempt would be sufficient to constitute a reasonable step justifying the refusal to work overtime and the reason given by the employee would constitute a family responsibility.
• On Thursday evening, a manager asked an office employee to work on the following Saturday. As he will have already completed his regular hours for the week, the hours worked on Saturdays would be overtime.  The employee exercised his right to refuse to work overtime to fulfill a family obligation. That Saturday, he had planned to take his daughter to her first soccer game and didn't want to miss the event. When asked by the employer about the family obligation invoked and the reasonable steps envisaged to try to comply with that obligation, his answers remained vague and did not convince the employer. The employer therefore forced the employee to report for work on Saturday or face disciplinary action. An inspector would conclude that the employee could not exercise his right of refusal because the alleged reason did not constitute a family obligation and, if so, the employee did not demonstrate that he had taken steps to comply with his obligation.
• A single mother has a child suffering from kidney failure who must go to the hospital every three days. In order to make access to this care easier, the employee recently moved from her remote village to a large city in order to be closer to a hospital centre. She has been in a new job since her move but she does not know anyone in the city other than her work colleagues. In this situation, the employee would not need to show any effort to justify her right to refuse because she has no one to take her place and the child absolutely must adhere to his hospital visits. Therefore, she would be justified to refuse to work overtime on the days that she must accompany her child to the hospital for his treatment.    

Note that, in all these examples, there was no unforeseen emergency, the employee is not a director or professional excluded from the application of Division 1, Part III of the Code, and the employee is also not excluded from the provisions relating to standard hours of work (section 169 of the Code).