Long Term Care Law Newsletter

Can an Employer in the Long-Term Care Sector Require
that Employees Work a Rotating Shift Schedule?

Summer 2021

Long-term care facilities run 24 hours a day, 7 days a week, 365 days a year and have to be staffed at all times in order to provide care to their residents. Rotating shift schedules are common. Many long-term care facilities receive pushback from employees regarding some of the less desirable shifts, like evenings and nights. In this newsletter, we explore whether employers in long-term care can require rotational shift work.

Rotating shift schedules, where employees work different shifts, are common in long-term care facilities. Hours of work can vary from one workplace to another: some facilities have 8-hour shifts, typically from 7am to 3pm, 3pm to 11pm, and 11pm to 7am; some facilities have 12-hour shifts, typically from 7am to 7pm and 7pm to 7am; other facilities have different arrangements.

Whatever the shifts are, it is common that employees have to work some variety of them. There are several reasons why employers in long-term care require employees to work rotating shifts. Despite those valid reasons, employees often cannot or do not work them. Employees sometimes provide a “doctor’s note” saying they are unable to work certain shifts due to health reasons or submit requests to not work certain shifts for family or religious reasons.

A labour arbitrator in Nova Scotia held a few years ago that the requirement to work rotating shifts in long-term care is a bona fide occupational requirement (a “BFOR”) so is permissible. It is a decision worth re-visiting as work schedules begin to return to normal after the COVID-19 pandemic.

What is a BFOR?

Employers cannot discriminate against employees who have characteristics protected under the Human Rights Act. However, the law recognizes that a limitation on individual rights may be justifiable in certain employment situations. For example, truck drivers have to meet vision standards. Strictly speaking, that standard discriminates against people who have a visual impairment. However, with proof that the requirement is essential to the effective and safe performance of the job that requirement would be a BFOR and thereby permissible.

For a workplace standard or rule (the “rule”) to qualify as a BFOR it must meet a three-part test:

  1. The rule was adopted for a purpose rationally connected to the performance of the job.
  2. The rule was adopted in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose.
  3. The rule is reasonably necessary to the accomplishment of that work-related purpose in the sense that the employer cannot accommodate individuals who have the protected characteristic without incurring undue hardship.

How was the BFOR established in Nova Scotia?

In Nova Scotia, Arbitrator Susan Ashley held in 2016 that a nursing home could require employees to work at least two out of the three rotating shifts in place in that particular home.  In CUPE, Local 1259 and The Admiral Long-Term Care Centre, 2016 CanLII 153435 (NS LA) Arbitrator Ashley heard evidence about the need to have employees, especially nursing staff, work a rotating shift schedule.

The nursing home had a variety of shifts but nursing staff tended to work 8-hour shifts from 7am to 3pm, 3pm to 11pm or 11pm to 7am. The employer had a long-standing practice that employees had to work two out of three of those shifts and be available to work the 3rd shift. The employer led evidence of the reasons why it adopted that practice.

First, the needs of residents can vary greatly throughout the day, so having nursing staff view these changing conditions allows staff to gain insight into resident needs.

Second, a permanent night shift would impact the employer’s ability to effectively supervise all of their staff. Many administrators and managers work a more traditional workweek and a result of that schedule is that they would have very few interactions with permanent night staff. The employer’s ability to supervise may also affect the reporting of concerning behaviour that requires discipline.

Last, the employer highlighted that facilities that did not have a rotating shift had more incidents of resident abuse, especially on the night shift. There is significant literature on the issues that can arise when a permanent night shift is in place.

Arbitrator Ashley accepted that those reasons were rationally connected to the performance of the job and adopted in an honest and good faith belief in that facility. She wrote:

  1. The rationale for the shift requirement at this facility makes good sense, in that nursing staff should be aware of resident needs over the course of the day, as it may affect their care. The Employer also points to an increase in resident abuse, which occurs in particular in homes without rotating shifts, where staff work regular night shifts. In practice, the rotating shift rule does not mean that nursing staff must work all three shifts. The requirement was described as working two shifts, and the ability to work three. Further, the rotating shift requirement seems somewhat more flexibly applied at Heart of the Valley than at The Admiral, both of them operated by the same corporation. Having said that, I find that the rule is rationally connected to the purpose of the job, and that it was adopted in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose. The analysis must then turn to the third spoke of the Meiorin wheel, which raises the issue of undue hardship.

As is clear from that quotation, the employer still had to consider whether it could accommodate individuals without undue hardship. In this particular case, Arbitrator Ashley found that the employer could have done more to accommodate the employee. The lesson for other employers is to be sure that they consider all attempts at accommodation and document them properly.

Conclusion

Arbitrator Ashley’s decision is significant as it shows that employers in the long-term care sector can establish rotating shifts as a BFOR. The employer needs to follow the three-step test set out above. As always, with issues of accommodation, it is important to involve the union at an appropriate point and to document discussions and deliberations.


This newsletter is produced by Wickwire Holm to keep our clients and friends informed of developments in the law and emerging issues. It is intended for general information purposes only. In preparing and circulating this newsletter, Wickwire Holm is not providing legal or other professional advice. Readers are encouraged to consult their professional advisers before taking any action on the basis of information contained in this newsletter. If you have any questions about any issues raised within this newsletter or a related issue, please contact us at wh@wickwireholm.com or 902.429.4111.