HR HealthCheck

New Measures to Support the Delivery of Frontline Care in the Long-Term Care Setting

HR HealthCheck

New Measures to Support the Delivery of Frontline Care in the Long-Term Care Setting

Date: April 25, 2020

In this HR HealthCheck, we review the latest order (Order) made under the Emergency Management and Civil Protection Act (EMCPA) on April 24, 2020 regarding temporary measures focusing on the long-term care sector and the fight against COVID-19 (O. Reg. 174/20). We also discuss the new temporary pandemic payment introduced to support certain frontline workers in Ontario, announced by the Ontario government on April 25, 2020.

Ontario Hospitals Given Additional Powers to Direct Staff into Service in Long-Term Care Homes

The changes described below signal an extraordinary development in the delivery of health care in Ontario, and are made through amendments to the Emergency Order first issued on March 21, 2020. The new Order builds on the developments we shared in our earlier FTR Now, COVID-19 and Staffing – Province Issues Emergency Order for Health Service Providers. Originally, health care organizations captured by the March 21 order were given broad authority to take all reasonable steps necessary to staff and redeploy as needed to deal with the COVID-19 pandemic. 

Effective April 24, 2020, the March 21 order was amended to authorize those same health service providers to provide assistance and staffing to licensees and long-term care homes under the Long-Term Care Homes Act, 2007. This includes municipal homes for the aged.

Health service providers are authorized under the Order to take “any reasonably necessary measure to respond to, prevent and alleviate the outbreak of the coronavirus … for patients.” Regardless of any other statute, regulation, order, policy, arrangement, agreement, or collective agreement, the Order authorizes health service providers to assist long-term care homes including, without limitation;

  1. by providing assessments in relation to a long-term care home’s infection prevention and control program,
  2. by providing clinical supervision within a long-term care home, and
  3. by providing nursing and personal support services, including assistance with feeding, to residents of a long-term care home.

Health service providers are authorized under the Order to provide this assistance by redeploying their own staff to long-term care homes. As we understand it, Ontario Health has already or will be sharing with hospitals lists of local homes in need of front line staff support.  

The Amending Order further provides that, for the period the Order is in place, the following rules apply:

  1. Staff of a health service provider who provide this assistance to a long-term care home remain staff of the health service provider,
  2. The provision of assistance shall not impact whether the health service provider and the licensee of the long-term care home are treated as constituting one employer for the purposes of subsection 1(4) of the Labour Relations Act, 1995, and
  3. The health service provider shall not, by virtue of providing the assistance, be considered to have sold a part of its business to the licensee of the long-term care home for the purposes of section 69 of the Labour Relations Act, 1995.

The effect of these rules is that staff of a health service provider who are redeployed to a long-term care home during the term of the Order remain employees of the health service provider. As such, those staff are still subject to the terms and conditions of employment as established at the health service provider, subject to the authority of the health service provider under the Order to override those terms and conditions where it is a reasonably necessary measure to respond to, prevent and alleviate the outbreak of COVID-19.

The EMCPA order that prohibits long-term care home employees from working in other long-term care homes or health care settings does not apply to employees of a health service provider deployed to work in long-term care homes.

Notwithstanding the broad powers of the Order, it is still recommended that health service providers consider consulting with staff and bargaining agents prior to implementing any staffing redeployments to long-term care homes. This new development arises less than two weeks into a program initiated within the health care sector to identify and deploy volunteers.

In exercising their authority under the Order, health service providers should continue to be mindful of any overriding obligations under the Human Rights Code that may apply to individual employee staffing/redeployment circumstances.

As with all orders issued under EMCPA, this current Order will be valid for the duration of the emergency unless it is revoked earlier. We will continue to monitor all developments related to this Order and all previously issued orders under the EMCPA and communicate any changes to our clients.

Ontario Announces Pandemic Pay Support for Frontline Workers Fighting COVID-19

On April 25, 2020, the Ontario government announced that it is providing temporary pandemic pay to frontline clinical and support workers in “recognition of the dedication, long hours and increased risk of working to contain the COVID-19 outbreak.”

Eligible frontline workers in long-term care homes, retirement homes, emergency shelters, supportive housing, social services congregate care settings, corrections institutions and youth justice facilities, home and community care, and some staff in hospitals, shall receive $4/hour worked on top of their regular wages for a 16 week period (April 24, 2020 to August 13, 2020).

The government will also provide monthly lump sum payments of $250 to eligible frontline workers who work over 100 hours per month, for up to four months. Employees working an average of 40 hours per week would receive $3,560 in additional compensation.

The temporary pandemic pay does not apply to management.

The government announced it expects this temporary pandemic pay will support over 350,000 frontline workers. For a complete list of eligible workplaces and eligible workers, please consult the backgrounder to the April 25, 2020 News Release issued from the Officer of the Premier.

For more information on this new Order or on the new temporary pandemic pay announcement, please contact Sarah A. Eves at 416.864.7254 or your regular Hicks Morley lawyer.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©