Reasonable steps - IPG-095
Effective date: September 1, 2019
Revised date: January 9, 2023
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Subject
The purpose of this Interpretation, Policy and Guideline (IPG) is to provide guidelines on the interpretation of the expression "reasonable steps" set out in section 174.1 of Part III of the Canada Labour Code (Code). This is with respect to an employee’s right to refuse to work overtime in order to fulfil a family responsibility.
Note: “employees” also includes “interns”. Student interns are not subject to the interpretation of this IPG.
Issue
The following amendment has been made to the Code.
- right to refuse - 174.1
The interpretation and application of the expression "reasonable steps" must be standardized nationally. This IPG addresses the following:
- what the expression "reasonable steps" means
- the criteria that are considered
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 impose an excessive constraint on the employee
The requirement of the employee to take reasonable steps is stipulated in the Code. It limits systemic and unreasonable use of the right to refuse to work overtime. By taking reasonable steps, an employee may prevent possible negative consequences for an employer where there is an increased need for employees to work overtime. It also gives the employee, under certain conditions, the possibility of fulfilling certain family responsibilities.
The employee is not obligated to demonstrate the result of trying to fulfill a family responsibility. However, when invoking a family responsibility to justify the right to refuse overtime, the employee must be able to show that they actually tried to resolve the family responsibility issue encountered.
Ideally, the employee should make 2 or more attempts to justify their refusal to work overtime. However, the number of attempts should not be a criterion considered independently. Strictly applying a number of attempts could disadvantage employees with a limited family or social network. Moreover, in some situations, a single attempt could be sufficient. In rare cases, no attempts could also be acceptable.
Therefore, each situation will be examined individually, based on different factors and the specific context. In addition, the expression "reasonable steps" should be applied in a liberal and non‑restrictive manner.
Essentially, an employee met their obligation if they, through concrete actions, tried to resolve their situation but were unsuccessful. The employee must also be able to show evidence of those actions. This would not be the case for an employee who found an alternative solution but simply preferred not to use it.
Examples
Example 1
An employee is able to show that he exchanged text messages with 1 or more family members to try to get them to pick up his child from daycare by 6:00 p.m. Therefore, he met his obligation. As a result, he could exercise his right to refuse to work overtime.
Example 2
An employee must accompany her sick mother to the doctor after her regular shift. Despite several requests to her sisters and brother by email and by phone, no one was able to go for her. She therefore can refuse the overtime requested by the employer on that day, since she took reasonable steps.
Example 3
An employee is a parent of an autistic child and the child's school called the employee 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 no one else could care for him given his medical condition. The same day, the employer asked the employee to remain at work and work overtime to repair machinery. The employee had to refuse and invoked a family responsibility. In this case, this single attempt would be sufficient to constitute a reasonable step. It justifies the refusal to work overtime and the reason given by the employee would constitute a family responsibility.
Example 4
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 Saturday 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. His employer asked about the family obligation invoked and the reasonable steps envisaged to try to comply with that obligation. The employee’s answers remained vague and did not convince the employer. The employer therefore forced the employee to report for work on Saturday. This is because the alleged reason did not constitute a family obligation.
Example 5
A single mother has a child suffering from kidney failure who must go to the hospital every 3 days. The employee recently moved from her remote village to a large city in order to be closer to a hospital. This, in order to facilitate access to this care. 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. 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 of the Code. The employee is also not excluded from the provisions relating to standard hours of work (section 169 of the Code).
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