COVID-19 and Long-Term Care – Ontario Takes Significant Steps to Address Staffing Concerns
Date: March 24, 2020
On March 21, 2020, the Ontario government issued an Emergency Order granting Ontario Health Service Providers broad authority to take all reasonable steps necessary to staff as needed to deal with the COVID-19 pandemic.
On Monday, March 23, 2020, the government took two significant steps to grant similar authority to long-term care home providers and Municipal Homes for the Aged to address the staffing issues which may arise due to the emerging pandemic.
One, on March 23, 2020, the Ontario government issued a second Emergency Order pursuant to the Emergency Management and Civil Protection Act (EMCPA). (The province’s powers under the EMPCA were discussed in our earlier FTR Now, Ontario Declares Emergency in Light of COVID-19.) This Order, as outlined below, grants long-term care home providers and Municipal Homes for the Aged broader flexibility to respond to the challenges posed by COVID-19.
Two, on March 20, 2020, the Ontario government filed an amending regulation under the Long-Term Care Homes Act, 2007 (Act) in order to assist all licensees under the Act in their response to the COVID-19 pandemic. The regulatory amendment, which took effect on March 20, 2020, amends existing rules governing 24-hour nursing care, screening measures, and staff training as they apply in the case of a pandemic.
In this FTR Now we will provide a brief summary of these two significant developments and will address the impact that they may have on long-term care homes as they navigate their ongoing COVID-19 response.
The March 23, 2020 Emergency Order
Who does this Order Apply to?
As noted above, this Order applies specifically to two groups of Health Service Providers who were not covered by the Ontario government’s previous Emergency Order – long-term care home providers and Municipal Homes for the Aged (Health Service Providers). It is separate and distinct from the March 21, 2020 Emergency Order which applies to public hospitals under the Public Hospitals Act, private hospitals within the meaning of the Private Hospitals Act, mental health hospitals governed by the Mental Health Act and the Ottawa Heart Institute.
What Can a Health Service Provider do Under this Order?
Regardless of any collective agreement, statute, regulation, order, policy, arrangement or agreement, a Health Service Provider covered by this Order will be authorized to take “any reasonably necessary measure to respond to, prevent and alleviate the outbreak of the coronavirus for patients” with respect to work deployment and staffing.
It is important to note that the order does not suspend all provisions of an employer’s collective agreement or individual employment agreements. Instead, the Order focuses on granting Health Service Providers the authority to take the steps reasonably necessary to staff regardless of any provisions of a collective agreement, statute, policy, employment agreement and so on.
In particular, the Order grants Health Service Providers the immediate authority to do the following:
- Redeploy staff within different locations in (or between) facilities of the health services provider
- Change the assignment of work, including assigning non-bargaining unit employees or contractors to perform bargaining unit work
- Change the scheduling of work or shift assignments
- Defer or cancel vacations, absences or other leaves
- Employ extra part-time or temporary staff or contractors, including for the purpose of performing bargaining unit work
- Use volunteers to perform work including bargaining unit work
- Provide appropriate training or education as needed to staff and volunteers to achieve the purposes of a redeployment plan
- Conduct any skills and experience inventories of staff to identify possible alternative roles in priority areas.
- Collect and require information from staff or contractors about their availability to work or provide services
- Collect and require information from staff or contractors about their likely or actual exposure to COVID-19 or about any other health conditions that may affect their ability to provide services
- Suspend the grievance process with respect to any matter arising out of this Order for the duration of the Order.
Important Considerations and Next Steps
The Order does not suspend all parts of a collective agreement, workplace policy or contract of employment. It contemplates that unilateral changes will be made within the confines of this Order and it expressly contemplates that this authority will be acted upon reasonably.
Accordingly, it is strongly recommended that Health Service Providers consider consulting with staff and bargaining agents prior to implementing any planned changes. Further, in respect of the collection of information or data of a sensitive or private nature, care should continue to be taken to safeguard that information.
As with all Orders issued under EMCPA, this current Order will be valid for only 14 days unless it is revoked or renewed in accordance with the statute.
The March 20, 2020 Regulatory Amendments
As noted above, prior to issuing the Emergency Order of March 23, 2020, the Ontario government made a number of amendments to the General Regulation under the Act which, in conjunction with the Order, will alleviate certain restrictions facing long-term care employers. A summary of those amendments is set out below.
24/7 RN Flexibility
Pursuant to subsection 8(3) of the Act, all licensees are required to ensure that at least one RN who is employed by the home and is part of the home’s regular nursing staff is on duty and present at all times, subject to a series of exemptions.
Those exemptions are modified by the new regulatory amendments, which provide that, where a pandemic prevents an RN from getting to the home, and where the home’s written staffing plan fails to ensure that the requirements of subsection 8(3) are met, the home will be able to meet the requirements of subsection 8(3) by doing one of the following:
- Utilizing the services of an RN who works at the home pursuant to a contract or utilizing the services of an RN through an employment agency; or,
- Utilizing the services of an RPN who is an employee of the home, or who works at the home pursuant to a contract, or utilizing the services of an RPN through an employment agency if the Director of Nursing and Personal Care or an RN is available to them for consultation; or,
- Utilizing the services of another regulated health professional who is a staff member of the home, and who has a set of skills that, in the reasonable opinion of the home, would allow them to provide care to a resident. Provided that the Director of Nursing and Personal Care or an RN is available for consultation.
These amendments extend far beyond the existing emergency provisions already provided for under the General Regulation and now temporarily allow for the “24/7 RN” requirements to be met through temporary agency RNs, RPNs and regulated health professionals with a reasonable skill set level to provide care.
As long-term care homes continue to plan to address the impacts of COVID-19 on their staffing needs, they should, as appropriate, utilize these temporary options to deviate from the standard “24/7 RN” requirement.
Director of Nursing and Personal Care – Hours of Work
Under subsection 71(4) of the Act, the Director of Nursing and Personal Care for a licensee is required to work a minimum number of hours in this position, on site, for the licensee depending on the prescribed number of beds for that home.
The amendments to subsection 213 of the General Regulation remove these hours of work requirements, acknowledging that the impacts of the COVID-19 pandemic may restrict a Director of Nursing and Personal Care from working in this capacity on site at the home for the prescribed number of hours. This amendment will allow homes to avoid compliance orders or other forms of enforcement under Part IX of the Act if their Director of Nursing and Personal Care is unable to meet the hours requirements of the Act or the Regulations for the duration of the pandemic, particularly if they are required to self-isolate or are otherwise unable to work on site.
Screening Measures for Staff and Volunteers
The amendments to the General Regulation have loosened the requirements around criminal reference checks for newly-hired staff members and volunteers who are hired by licensees during the course of the pandemic.
The Act and the General Regulation typically require that a new employee or volunteer provide a criminal reference check which has been conducted within six months before the staff member or volunteer is hired by a licensee. The amendments to the General Regulation waive this requirement during a pandemic, provided that the staff member or volunteer provides the licensee with a signed declaration disclosing all prescribed charges, orders, and convictions since their last criminal reference check (or, where no previous reference check has been conducted, all such occurrences). Prospective staff and volunteers will be required to make their declaration in accordance with the disclosure obligations normally required for a vulnerable sector check, as outlined in the Police Record Checks Reform Act, 2015.
Once the pandemic declaration has been revoked, licensees will then be required to ensure that all staff members or volunteers who were hired during the pandemic submit to criminal references checks as normally provided for under the General Regulation. These criminal reference checks will have to be conducted within one month of the declaration being revoked.
While the relaxing of these requirements will assist licensees in ensuring proper staffing and support throughout the COVID-19 pandemic, licensees will have to take care to ensure that new hires during the pandemic are properly apprised of the criminal background check requirement, and are hired on an understanding that employment will remain contingent on successful clearance once the declaration has been revoked. For employees who are hired into non-union roles, this will require licensees to pay particular attention to the terms of their employment agreements, and to revise those agreements where employees will be subjected to criminal reference checks well after they have commenced their employment.
Similarly, for unionized employers, this will require employers to pay particular attention to the provisions of their collective agreements to ensure that they will have the latitude to respond appropriately where it is discovered that an employee has failed to make an honest declaration at the time of hire, or that a post-hiring criminal reference check discloses conduct which would have disqualified the employee from employment in the first place.
The regulatory amendments relax certain upfront orientation and training requirements for new hires in order to get them into service faster.
Normally, pursuant to subsection 76(2) of the Act, all licensees are required to ensure that all staff have received comprehensive orientation in the following areas before commencing their duties for the home:
- The Residents’ Bill of Rights.
- The long-term care home’s mission statement.
- The long-term care home’s policy to promote zero tolerance of abuse and neglect of residents.
- The duty under section 24 to make mandatory reports.
- The protections afforded by section 26.
- The long-term care home’s policy to minimize the restraining of residents.
- Fire prevention and safety.
- Emergency and evacuation procedures.
- Infection prevention and control.
- All Acts, regulations, policies of the Ministry and similar documents, including policies of the licensee, that are relevant to the person’s responsibilities.
- Any other areas provided for in the regulations.
The General Regulation further requires that licensees provide training on (1) the licensee’s written procedures for handling complaints and the role of staff in dealing with complaints, (2) safe and correct use of equipment (including therapeutic equipment, mechanical lifts, assistive aids and positioning aids), and (3) cleaning and sanitizing of equipment relevant to the staff member’s responsibilities.
Under the regulatory amendments, licensees are relieved of providing all of these training components prior to an employee’s start date when the employee is hired during a pandemic. Instead, licensees are permitted to provide training with respect to the matters identified in items 1, 3, 4, 7, 8, and 9 within one week of the employee commencing their responsibilities with the home. All other training requirements must be fulfilled within three months of the employee’s start date.
The easing of these training requirements should allow long-term care homes to more quickly meet their staffing needs during the course of the pandemic, while maintaining a focus on patient and employee safety. It is important for licensees to remember that the easing of these training requirements does not eliminate the training obligation in its entirety, and training deadlines will have to be diarized in order to ensure compliance with the Act.
While many questions remain regarding the depth of the impact that COVID-19 will have on the long-term care sector, the Ontario government’s Emergency Order under the EMPCA and the amendments to the General Regulation should provide employers with greater ability to deliver safe and appropriate care to their residents during this challenging time.
These temporary overrides of the legislation, regulations and collective agreements should be used appropriately as you deal with all of the extraordinary challenges of COVID-19.
We can assist in your maximization of these overrides and we are happy to answer any questions you may have about these developments.
As employers in the long-term care sector continue to adapt to the challenges of COVID-19, we at Hicks Morley will continue to monitor all developments which may have an impact on the sector, and will endeavour to provide timely updates for our clients.
For more information on how these amendments to the General Regulation made under the Long-Term Care Homes Act, 2007 may affect your organization, please feel free to contact John J. Bruce at 416.864.7285, Andrew N. Zabrovsky at 416.864.7536, or your regular Hicks Morley lawyer.
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