THE QUESTION
The break room at my workplace is a seven-minute walk from my workstation. I am told that I must take my breaks in the break room. If I have a 30-minute break, half of that time is spent walking to and from the break room. Should my 30 minutes start when I leave my workstation or when I reach the break room?
THE FIRST ANSWER
Rahul Soni, employment lawyer, Soni Law Firm, Toronto
Your break time starts when you reach your break room. Your employer has a clear rule stating that your breaks are to be taken in the break room only. So, you simply cannot be “on break” until you reach that employer-designated break room.
In Ontario, the Employment Standards Act states that your employer must “provide eating periods of at least one-half hour” and ensure you are not “working longer than five consecutive hours without an eating period.” This “eating period” is meant to be an uninterrupted block of time for you to peacefully enjoy your meal and disconnect from the workday.
It is unreasonable to expect you to start your eating break while walking to the break room. Also, your employer has a fiduciary obligation toward you, which means they need to act in an almost parent-like role to support you in the workplace. As part of your employer’s fiduciary duty, they must take reasonable measures to give you a fair opportunity to take your 30-minute break without interruption. This same parent-like fiduciary responsibility means that your employer cannot expect you to end your break early simply because it takes you a long time to walk back from the break room.
You may want to speak with your employer about creating a system for tracking when you enter and leave the break room. You should share your concerns about the lengthy time it takes to walk to and from the break room. Another pragmatic solution may be for your employer to provide a brief grace period on top of your 30-minute break to account for the walking time to and from the break room.
THE SECOND ANSWER
Tessa C. Belliveau, associate, Stewart McKelvey, Moncton, N.B.
Your question brings up a lot of preliminary issues such as “what is a break?” Does a “break” begin the moment an employee stops working or is there a “clock out” procedure? Unfortunately, most federal and provincial legislation does not provide a specific definition of the word “break.” In some provinces, a break includes a period of rest and a time to eat a meal.
Federal and provincial labour and employment standards codes do not generally impose a mandatory designated break area on employees, nor do they provide a particular way to time breaks. Some collective agreements, however, do set out specifications regarding duration and location of a break. If you work in a unionized workplace, I suggest first looking at the collective agreement in place to see if it provides any additional information on when you start timing your breaks.
The Canada Labour Code and most provincial employment standards acts simply indicate that employees are entitled to a 30-minute unpaid break during every period of five consecutive hours of work, with a few exceptions. Interpreting this literally, a break would start the moment the employee stops working and, in your case, the moment you leave your workstation.
That said, employers should exercise a degree of reasonableness and fairness in the workplace. If your break is one where you also have to eat a meal, this should factor into what is deemed reasonable. If you are spending half of your allotted break time going to and from the designated break room, I recommend speaking with your employer to see if there is an alternate space where you can spend your break that is closer to your workspace. If there is a union at your workplace, you should consult with your union representative.
Have a question for our experts? Send an e-mail to NineToFive@globeandmail.com with ‘Nine to Five’ in the subject line. Emails without the correct subject line may not be answered.