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Hours of Work

This workbook has been prepared to assist employers and employees in understanding some of their obligations and rights under the Employment Standards Act (ESA) and its regulations. It does not take the place of the ESA and its regulations and it should not be considered to offer any legal advice on your particular situation.

There are limits to the number of hours an employee can be required or allowed to work. For most employees, the daily and weekly limits are eight hours and 48 hours, respectively. However, some businesses and/or employees are exempt or subject to special rules. The Special Rule Tool can help you find out if an exemption or special rule applies.


If you have checked the chart and you are confident that your employees are exempt from Hours of Work rules under the Employment Standards Act (ESA), refer to Eating Periods. If you think they may be exempt, but are not sure, please call the Employment Standards Information Centre. Otherwise, please continue below.

Daily Limits of Work

The maximum number of hours most employees can be required to work in a day is eight hours or the number of hours an employer has established as the employee's regular work day, if it is longer than eight hours.

Exception to Daily Limits of Work

Generally speaking, an employee can be required or allowed to work more than the daily limit only if he/she has agreed in writing and was provided with the handout entitled “INFORMATION FOR EMPLOYEES: About Hours of Work and Overtime Pay”, prior to the agreement.

IMPORTANT NOTE: Even if these conditions are met, an employee must have 11 consecutive hours free from work in each day (24 hour period.)


Weekly Limits of Work

The maximum number of hours most employees can be required or allowed to work in a week is 48 hours.

Exceptions to Weekly Limits of Work

Generally speaking, an employee can be required or allowed to work more than the weekly limit if he or she has agreed in writing and was provided with the handout entitled “Information for Employees: about Hours of Work and Overtime Pay,” prior to the agreement. Unlike the case with the daily limit, the approval of the Ministry’s Director of Employment Standards is also required. (The weekly limit can be exceeded while an application for approval is pending, but certain conditions and restrictions apply.)

Things to Consider

  • If you plan to have a work week that is longer than 48 hours, it is very important that you read the information in this link: http://www.labour.gov.on.ca/english/es/forms/hours.php. There you will find step-by-step instructions on how to apply for approval to schedule a work week that is more than 48 hours.
  • Requiring or allowing employees to work more than 48 hours per week without this approval is a violation of the ESA, UNLESS:
    • the employee is exempt;
    • the exceptional circumstances exception applies; or,
    • in certain cases, an approval application is pending.
  • An agreement between an employee and an employer to work additional daily or weekly hours, or an approval from the Director of Employment Standards for excess weekly hours, does not mean you do not have to pay that employee overtime. They are separate standards.
  • When applying for an exception to hours of work or overtime averaging a process for informing employees must be followed.

Employer Posting Requirements

Employers are required to post a copy of the application in at least one conspicuous place in every work place such that it is likely to come to the attention of the employees it applies to. The application must remain posted until an approval or notice of refusal is issued.

If 30 days elapse from the date the application was served and the employer has not been notified that the application has been refused, the employer may:

  • in the case of an Application for Excess Weekly Hours of Work, schedule employees to work up to the maximum of 60 hours per work week, if a number of conditions prescribed in the Employment Standards Act, 2000 (ESA) are met.
  • in the case of an Application to Average Hours of Work for Overtime Pay Purposes, average hours of work over a period of two work weeks if a number of conditions prescribed in the ESA and discussed are met.

If the application is refused, a copy of the Notice of Refusal must be posted in at least one conspicuous place in the workplace so that it is likely to come to the attention of the employees the application applied to. The employer must keep the Notice of Refusal posted for 60 days following its date of issue.

IMPORTANT NOTE: The same application form is used by employers to average an employee's hours of work for overtime pay purposes. It is referred to again in the Overtime Pay section of this workbook.


In order to stay concise, we will assume that your employees are not exempt from regular hours of work rules or covered by special rules for the remainder of this section.

Hours Free from Work

Your employees are entitled to a certain number of hours free from having to do work. These times include:

  • Daily rest periods
  • Time off between shifts
  • Weekly or bi-weekly rest periods

Daily Rest Period Requirements

In most cases, an employee is required to receive at least 11 consecutive hours off work each day. Generally, an employee and an employer cannot agree to less than 11 consecutive hours off work each day.

The daily rest requirement applies even if you have received approval from the ministry’s Director of Employment Standards to exceed weekly limits on hours of work. Generally, this requirement cannot be altered by a written agreement between the employer and employee.

IMPORTANT NOTE: This rule does not apply to employees who are on call and called in to work during a period when they would not normally be working.


Time Off Between Shifts

Employers must give their employees at least eight hours off work between shifts (unless the employee and employer agree in writing that the employee will receive less than eight hours off work between shifts). This does not apply if the total time worked on both shifts does not exceed 13 hours.

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Example

Monica works in a restaurant. She is on split shifts, working from 6:00 a.m. to 11:00 a.m. and then from 4:00 p.m. to 9:00 p.m. The total time of her two shifts is 10 hours. Monica does not need to have eight hours off between the split shifts because the hours she works does not exceed 13 hours.

 

Exceptional Circumstances

There are exceptional circumstances where you may require employees to work more than the daily or weekly work limits, or to work during a period that requires time off for the employee. These apply only when it is necessary to avoid serious interference with the ordinary operation of your establishment. This is explained further below.

They exist when:

  • There is an emergency;
  • something unforeseen occurs that would interrupt the continued delivery of essential public services, regardless of who delivers these services (for example: hospital, public transit or firefighting services, even if the employee only indirectly supports these services, such as an employee of a company that is contracted to prepare and deliver patient meals to a hospital);
  • something unforeseen occurs that would interrupt continuous processes;
  • something unforeseen occurs that would interrupt seasonal operations (such as winter ski operations); and/or,
  • it is necessary to carry out urgent repair work to the employer's plant or equipment.

Examples include, but are not limited to:

  • a natural disaster/very extreme weather;
  • a major equipment failure;
  • fire or flood; and/or,
  • an accident or breakdown in machinery that prevents others in the workplace from doing their jobs (e.g. the shutdown of an assembly line in a manufacturing plant).

Examples of situations that ARE NOT considered exceptional circumstances:

  • Rush orders are being filled
  • Periods of inventory-taking
  • When an employee does not show up for work
  • Poor weather slows shipping or receiving
  • During seasonal busy periods (e.g. Christmas)
  • During routine or scheduled maintenance

IMPORTANT NOTE: Requiring an employee to work hours in excess of the daily or weekly limits, or during a period that requires time off for the employee in circumstances that are not exceptional (as described above) would be a violation of the Act.


Miscellaneous Things to Remember

Night Shifts

The ESA does not put restrictions on the timing of an employee's shift other than the requirements for daily rest and time off between shifts, as described earlier. Also, the ESA does not require you to provide transportation to or from work if an employee works late.

Travel Time

The ministry considers the time an employee spends getting to or from a place where work was or will be performed (with the exception of commuting time) as working time. Commuting time is usually not seen as working time. Commuting time for an employee who has a regular work location is the time it takes him or her to get to work from home and vice-versa. There are some situations where commuting time has been seen as working time (e.g. where an employee takes a work vehicle home in the evening for the convenience of the employer and where the employee is required to transport supplies or other staff to or from the workplace or work site).

Training Time

Time spent by an employee in training that is required by the employer or by law is considered to be working time. An example would be training that is a condition to continued employment in a position.

Time spent in training that is optional to the employee (i.e., not required by the employer) would not be considered working time. An example of this would be if an employee was looking for a new position with the employer and training was necessary to obtain that position.

Hours of Work Checklist

Please verify that your employees receive the correct:

Daily rest periods Yes No
Time off between shifts Yes No
Weekly or bi-weekly rest periods Yes No
Do you have a record of the hours worked by you employees each day and week? Yes No
Have you have kept these for three years after the day or week of work? Yes No

Please consider the following:

  1. For employees who receive a “salary,” you need to record only the number of hours worked in excess of the employee’s regular work week.
  2. For employees who receive a “salary,” you need to record only the number of hours in excess of eight hours or the employee’s regular work day if longer than eight hours.
  3. An employee is considered to have a “salary” if he or she is paid a fixed amount for each pay period and the amount actually paid in each pay period does not vary with the number of hours worked unless more than 44 hours are worked in a week.

 

Questions? Call the Employment Standards Call Centre at 1-800-531-5551


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