Most employers know that there are restrictions under employment standards legislation regarding maximum hours of work for their employees. In certain circumstances, it is possible to exceed these daily or weekly maximums. However, care must be exercised when doing so in order to avoid a breach of the employer’s duties under occupational health and safety legislation. This issue was explored in the recent Ontario decision of Durham (Regional Municipality) v. Canadian Union of Public Employees.
Hours of work
The Region of Durham (Region) runs four long-term care homes that operate 24 hours a day, seven days a week in three eight-hour shifts (day, evening, and night). During the course of 2015, the Region raised concerns about employees working excessive hours without adequate rest between shifts. There were multiple examples of employees working more than eight hours a day and 48 hours per week, including employees working double shifts with only eight consecutive hours of rest in a 24-hour period.
The parties agreed that, in 2015, healthcare aides and registered practical nurses had worked at the homes in violation of the hours of work maximums set by the Ontario Employment Standards Act, 2000 (ESA) on 752 occasions. In 2015, there were also 302 workplace injuries or accidents reported in the homes and 17 reports of resident abuse or neglect. However, neither party specifically alleged that there was a meaningful correlation between the employees’ working hours and the reports of workplace accidents, injuries, or resident abuse.
Legal issues referred to arbitrator
The legal issue at arbitration centered on whether the ESA and the provisions of the Ontario Occupational Health and Safety Act (OHSA) could override collective agreement provisions that addressed hours of work.
The parties decided to enter into a Memorandum of Agreement to refer the issue to arbitration. While neither party took any specific position with respect to these issues, it was the Region that had raised legal concerns involving compliance and the potential impact of employee fatigue on resident care.
Compliance with employment standards legislation
The arbitrator considered whether the Region was required to ensure that employees working in the homes had 11 hours free from work in a day and 24 consecutive hours free from work in a workweek or 48 consecutive hours every two workweeks, as required by the ESA. The ESA permits contracting out of the restrictions under the ESA where provisions in a collective agreement provide a greater right or benefit to an employee than the employment standard specified in the ESA.
In this case, the arbitrator found that because the collective agreement in question did not restrict employees from working a 16-hour shift made up of one scheduled shift followed by one voluntary overtime shift, it provided a greater right or benefit than the ESA. Therefore, the collective agreement governed.
Compliance with the occupational health and safety legislation
The OHSA does not contain any provisions that expressly prohibit employees from voluntarily working a 16-hour shift. However, subsection 25(2)(h) of the OHSA provides that an employer “shall take every precaution reasonable in the circumstances for the protection of a worker.”
The arbitrator found that there was no meaningful correlation between workplace accidents in the homes, resident care complaints, and the fact that staff routinely worked double shifts. The parties had submitted that it was common practice in the healthcare industry (including hospitals, long-term care facilities, and paramedics) for employees to work double shifts of up to 16 hours per day and that there had not been any instances of staff reporting work-related fatigue or refusing work because of work-related fatigue.
The arbitrator referred to a decision where it was held that “while it is reasonable to accept that an employee is not as fresh after working sixteen hours straight than he or she may be after working only eight, there was no evidence that working sixteen hours created a health and safety risk.”
The arbitrator concluded that “it is logical that as the workday proceeds, employees will progressively become more and more fatigued and that an employee will be more fatigued after sixteen hours than they will be after eight.” However, the arbitrator also concluded that there was no evidence that employee fatigue at 16 hours reaches a level that creates a “measurable increased risk” and that, to the contrary, the evidence was that there was no “causal connection” between double shifts and any injury or resident care complaint.
The arbitrator noted, however, that there could be circumstances in which a specific employee might be so fatigued after a normal eight-hour shift that the employee ought not to work a second shift and, in that case, there was an onus on the employee to assess his or her fitness to voluntarily perform the added shift.
Takeaway for employers
This decision confirms that when determining whether hours of work in excess of those permitted under applicable employment standards legislation creates a violation of occupational health and safety legislation, it is necessary to conduct an assessment of the particular work circumstances to evaluate whether the excess hours could create a “measurable increased risk.”
