HR HealthCheck

Access To and Use of PPE Governed by CMOH Directive 5: An Inherent Balancing Act Confirmed by Arbitrator Stout

HR HealthCheck

Access To and Use of PPE Governed by CMOH Directive 5: An Inherent Balancing Act Confirmed by Arbitrator Stout

Date: May 5, 2020

Overview

On March 11, 2020, the World Health Organization (WHO) declared a pandemic in respect of the global spread of COVID-19, following which on March 17, 2020, the Premier of Ontario declared a province-wide state of emergency pursuant to section 7.0.1 of the Emergency Management and Civil Protection Act. In response to these unprecedented circumstances, Ontario’s Chief Medical Officer of Health (CMOH) issued a series of Directives pursuant to section 77.7 of the Health Protection and Promotion Act (HPPA) addressing precautions and procedures to be followed by health care providers and health care workers to protect the health of persons anywhere in Ontario.

Directive 5, revised on April 10, 2020, was the principal focus of an arbitration that proceeded before Arbitrator John Stout. In an award dated May 4, 2020, Arbitrator Stout addressed, among other things, critical aspects of the CMOH’s Directives respecting access to and use of personal protective equipment (PPE). In this HR HealthCheck, we provide an overview of this significant award (Award), a decision of notable impact to health care providers and health care workers alike, in both the Hospital and Long-Term Care sectors.

The Award resolved numerous grievances commenced by the Ontario Nurses Association (ONA) against a number of Long-Term Care Homes (Homes). ONA alleged, among others, that the Homes had violated their Collective Agreements, the Occupational Health and Safety Act (OHSA) and section 7 of the Canadian Charter of Rights and Freedoms (Charter).

In particular, ONA alleged that the Homes had failed to provide adequate PPE, failed to permit employees to self-isolate, failed to follow the “precautionary principle” in the caring and treatment of residents, and failed to take every precaution reasonable in the circumstances arising as a result of the extraordinary threat posed by the COVID-19 pandemic. One of the key issues that Arbitrator Stout was required to deal with was compliance with Directive 5, and in particular, the appropriate use of N95 masks.

Directive 5 was issued by the CMOH after receiving input from various interested parties including representation from ONA, the Homes, and Hospitals, in an effort to balance the need for appropriate PPE, including N95 masks, with the need to conserve those supplies. This has proven to be no easy task for health care providers during the COVID-19 pandemic.

The Award followed on the heels of an interim injunction heard by Justice Morgan of the Ontario Superior Court of Justice on April 22, 2020, pending the resolution of the issues at arbitration. In Ontario Nurses Association v. Eatonville/Henley Place, Justice Morgan granted the interim injunction and ordered a specific group of Homes to comply with Directives 3 and 5. In particular, the group was ordered to provide nurses with N95 masks, if requested, as long as they had undertaken the necessary assessment and determined that such masks were required in accordance with Directive 5. While Justice Morgan ordered compliance with Directives 3 and 5, he did not make an order setting out or otherwise opining on the circumstances where it would be appropriate for an employer to reasonably deny a nurse’s request for PPE, including an N95 mask.

Arbitrator Stout was therefore charged, in part, with filling out the practical details of how the allocation of scarce PPE in general, and N95 masks in particular, was to be handled in the face of the realities of dealing with a pandemic and a global shortage of N95 masks. 

Following a mediation-arbitration, and recognizing the parties’ shared mutual goals, Arbitrator Stout released the Award as a positive path forward for the parties to work jointly in the struggle to combat this disease and protect both health care workers and residents.

Directive 5

Directive 5 was issued by the CMOH pursuant to his powers under section 77.7 of the HPPA, and addresses worker health and safety and the use of protective clothing, equipment and devices. A key provision of Directive 5 relates to the provision of PPE to health care workers as follows:

If a health care worker determines, based on the PCRA [point of care risk assessment], and based on their professional and clinical judgement, that health and safety measures may be required in the delivery of care to the patient or resident, then the public hospital or long-term care home must provide that health care worker with access to the appropriate health and safety control measures, including an N95 respirator. The public hospital or long-term care home will not unreasonably deny access to the appropriate PPE.

The Precautionary Principle

The “precautionary principle” is a planning principle that, put simply, states that you should not wait for a risk to be scientifically proven before trying to address it. The principle was recognized by Justice Archie Campbell in his report on the 2003 SARs outbreak, and incorporated in Directive 5 and section 77.7 of the HPPA. This principle provides some guidance in making decisions on what PPE might be appropriate, but it does not deal with some practical problems such as how significant a risk must exist before being considered and addressed, or how to provide for such contingencies when there is a current or potential supply shortage of certain types of PPE.

The Award

Given this challenging situation, Arbitrator Stout had to balance the potential risks to the nurses, with the interests of the residents and the harsh reality of supply.

In the Award, Arbitrator Stout recognized that trying to apportion blame would accomplish nothing and chose to focus on providing the parties with “guidance to move forward, working together for the care of our most vulnerable elderly citizens.” In doing so, he acknowledged, as did the parties, that the Directives of the CMOH must be followed. At the same time, he acknowledged the right of management to run their operations as they see fit, subject to their legal obligations under the collective agreement or statute. In this regard, the Homes had actually implemented a protocol to provide guidance on how they would implement measures, including Directive 5, and had undertaken to abide by it. Further, the Homes had already provided assurance on measures that they had or would implement to protect health care workers. Some of those that relate to N95 masks include:

  • using best efforts to obtain PPE (including fitted N95 masks)
  • fit testing, and
  • communicating with each other and the government with respect to ways to preserve PPE to ensure supply (i.e. using expired N95 masks for fit testing).

In addition, Arbitrator Stout made a number of orders addressing the use of PPE in general and N95 masks in particular. These included:

  • N95 masks (or equivalent or better protection) and appropriate PPE must be made available when a nurse determines appropriate after conducting a PCRA in accordance with Directive 5
  • a PCRA must be conducted by a nurse before all patient interactions and be based on the nurse’s professional judgment, exercised reasonably, taking into account not only the requirements of Directive 5, but also other long and short term needs, as well as other appropriate health and safety measures and other factors
  • both the Homes and the nurses must engage in the conservation and stewardship of PPE
  • N95 masks must be worn whenever certain aerosol-generating medical procedures are performed, with a list of some of those procedures set out
  • while recognizing the need to store PPE in secure locations, N95 masks must be readily available, and
  • the Homes must pursue all proper avenues to secure N95s and other PPE and advise the Joint Health and Safety Committee of their efforts.

Arbitrator Stout went on to provide safeguards for both sides by recognizing the nurses’ obligations to exercise their right to N95 masks free of threat or intimidation, while at the same time recognizing the right of management to manage performance in the appropriate circumstances or to discipline for just cause, subject to the right of nurses to file grievances.

As a mechanism for resolving disputes, Arbitrator Stout stated that “In the event that there is a change in circumstances that significantly impact my Orders, the parties are free to vary my Orders by written agreement to suit their immediate needs, or if they cannot agree, then they may bring the matter before me on short notice.”

Conclusion

Ultimately, the Award affirms the parties’ agreement that the CMOH Directives are mandatory and that both health care providers and health care workers are obligated to comply with them. Confirming the balancing act inherent in Directive 5, the Award recognizes:

  • the reality that when faced with an immediate risk, a nurse must have immediate access to the PPE they deem appropriate in their professional judgment, including an N95 mask
  • the need to preserve items of PPE, such as N95 masks, is real and a nurse’s right to request one is not unfettered and must take into account issues of available supply
  • any request must be supported by a PCRA, undertaken in good faith and taking into account issues such as the needs of the resident and the available supply, in addition to risk, and
  • a failure to follow the proper process in determining appropriate PPE, may result in discipline.

Should you require further information about this award, please contact Ian Dick at 416.864.7334, Mitchell Smith at 416.864.7535, Kathryn Meehan at 519.883.3120, Nisha Dhanoa at 416.864.7469, Nadine Zacks at 416.864.7484, 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. ©