Ontario Government Implements Emergency Order in Response to COVID-19 Staffing Shortages in Retirement Homes

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With the declared province-wide state of emergency, the Ontario Government has been active in passing emergency orders under the Emergency Management and Civil Protection Act (the “EMCPA”), including several to address staffing shortages across Ontario’s healthcare sector. These previous emergency orders have been addressed in detail in earlier Focus Alerts which can be viewed on our COVID-19 Information Hub.

On April 2, 2020, the Ontario Government filed an emergency order streamlining work deployment restrictions for retirement homes which is similar to those orders previously filed in regard to hospitals and long-term care homes. This emergency Order lasts until April 16, 2020, unless revoked sooner or extended. A copy of the Order can be viewed here.

The Ontario Government had earlier addressed concerns relating to retirement homes in response to the COVID-19 outbreak, as reviewed in detail in an earlier Focus Alert. However, these amendments did not address concerns related to work redeployment measures, in contrast to the emergency Order.

The emergency Order applies to every retirement home and licensee within the meaning of the Retirement Homes Act, 2010 (the “RHA”).

 

Streamlining of Work Deployment Measures in Retirement Homes

The emergency Order permits licensees to take any reasonably necessary measures to respond to, prevent and alleviate the outbreak of COVID-19 in a retirement home as they relate to work deployment and staffing. The Order therefore significantly relaxes restrictions that apply to licensees under the RHA, collective agreements and other applicable laws and agreements with respect to work deployment and staffing.

The Order provides examples of several measures that licensees can take, despite any statute, regulation, order, policy, or agreement (including collective agreement) provision to the contrary, including the following:

  • Employing or using non-bargaining unit persons (including volunteers) to perform bargaining unit work;
  • Changing the scheduling of work or shift assignments;
  • Deferring or cancelling vacations, absences or other leaves, regardless of whether such vacations, absences or leaves are established by statute, regulation, agreement or otherwise;
  • Requiring and collecting information from staff, contractors or volunteers about their availability to provide services for the licensee and/or about any other health conditions that may affect their ability to provide services, such as their likely or actual exposure to COVID-19; and
  • Suspending, for the duration of the emergency, any grievance process with respect to any matter referred to in the Order.

The Order further clarifies that a licensee may implement redeployment plans without complying with provisions of a collective agreement, including seniority/service or bumping provisions.

While the restrictions on licensees have been relaxed, licensees’ ability to implement work deployment and staffing measures is not unfettered. In particular, the emergency Order establishes the following restrictions on licensees, despite anything else in the Order:

  • Licensees must comply with any applicable guidance given by the Chief Medical Officer of Health and any applicable directive issued under the Health Protection and Promotion Act;
  • Licensees must ensure a safe and secure environment for residents.

 

In Our View

Staffing shortages are a primary concern across the health care sector in the face of the COVID-19 outbreak. In providing licensees with a largely unfettered ability manage its workforce in the face of the RHA and applicable agreements, including collective agreements, this emergency Order facilitates the ability of licensees to take all reasonably necessary steps to address potential and actual staffing shortages.

For further information, please contact Vicky Satta at 613-940-2753Porter Heffernan at 613-940-2764André Champagne at 613-940-2735Lynn Harnden at 613-940-2731Raquel Chisholm at 613-940-2755 or J.D. Sharp at 613-940-2739.