Smoking breaks in Ontario: Rights for employees

Does my employer have to provide me with smoking breaks?

No. Your employer doesn’t need to give you a smoking break. Ontario’s Employment Standards Act, 2000 (ESA), doesn’t require companies to provide non-unionized employees with smoking breaks.

However, most workers in the province are entitled to one 30-minute break if their shift is at least five hours long. When your shift is more than 10 hours, your company must provide you with two 30-minute breaks.

READ MORE
• Ontario Break Times: Your Rights
• Bathroom breaks in Ontario
• Coffee breaks in Ontario
• Meal breaks in Ontario

What types of employees in Ontario are not entitled to a 30-minute break?

There are a number of workers who aren’t entitled to a 30-minute break under the ESA, including:

• Dentists
• Optometrists
• Pharmacists
• Psychologists
• Physicians
• Chiropractors
• Massage therapists

Are smoking breaks in Ontario paid?

The ESA doesn’t require employers in Ontario to pay staff for the 30-minute break, whether or not it’s used for smoking.

However, you must be paid during the break if:

• Your employment contract states that you must be paid during required breaks
• You aren’t allowed to leave your place of work during the 30-minute break

Can my employer choose when I take smoking breaks?

As long as you are not working more than five hours without a break, your employer ultimately gets to choose when you can take your required break.

While companies in Ontario aren’t obligated to provide you with smoking breaks in addition to the 30-minute break, they might allow you to split up the break throughout your shift to accommodate your needs.

• Example: Your work from 8 a.m. to 4 p.m. Your employer has designated 11:30 a.m. as the time when staff can take their 30-minute break. Instead of only being able to smoke once during your shift, you would rather two 15-minute breaks. After speaking with your boss, the company decides to let you take a 15-minute break at 9:15 a.m. and another at 2:15 p.m.

If you have any questions or concerns about your designated break times, speak with your employer.

I need more breaks because of my medical condition, what should I do?

If non-unionized employees in Ontario have a medical condition or health issue that requires longer or more frequent breaks, they should provide their employer with a note from their doctor.

Once this information has been provided, your company is legally obligated to accommodate your medical requirements.

Example: You have a disability and need to smoke or vape cannabis for medical purposes. You speak with your doctor and they provide you with a note to give to your employer. Now that the company has the note, they must make appropriate accommodations to meet your needs.

LEARN MORE
• Sick notes in Ontario: Rights for employees
• Disability in the workplace

WATCH: Employment lawyer Lior Samfiru discusses everything employees need to know about the duty to accommodate on an episode of the Employment Law Show.

Can my employer make changes to my job for taking smoking breaks?

In Ontario, non-unionized employees don’t have to accept major changes to their job. Large modifications such as a demotion, cut in pay, reduction in hours, or negative change to commission are illegal.

When the terms of your employment are significantly changed, the law allows you to resign from your job and seek full severance pay through a constructive dismissal claim.

READ MORE
• Do I get severance if I quit?

Can my employer fire me for taking smoking breaks?

Your employer can fire you for taking smoking breaks. This is called a termination without cause.

In Ontario, companies can let non-unionized employees go for any reason, as long as:

• They are provided full severance pay
• The reasons for their dismissal are not discriminatory

What your employer can’t do in this situation is fire you for just cause, which would mean no severance package or access to Employment Insurance (EI) benefits.

To justify this, the company would have to prove:

• Progressive disciplinary measures were applied
• A less severe punishment would be insufficient

This type of termination is reserved for the worst kinds of workplace offences, such as theft or insubordination.

LEARN MORE
• How to calculate severance pay
• Severance for provincially regulated employees

Fired for taking a smoke break?

If you lose your job because you took a break, or for any other reason (with or without cause), contact the experienced employment law team at Samfiru Tumarkin LLP.

Our lawyers in Toronto and Ottawa can review your situation, work to secure proper compensation, and ensure that your workplace and human rights are properly enforced.