Ontario Issues Emergency Order to Support Hospitals in Assisting Long-Term Care Homes

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As the COVID-19 outbreak continues in Ontario, it has become increasingly clear that those living and working in long-term care homes are likely at a higher risk of being exposed to, and potentially becoming ill as a result of, the virus. On April 24, 2020, amendments were made to the existing provincial emergency order (Ontario Regulation 74/20) regarding work deployment measures for health service providers in an effort to address potential health care and staffing issues in the long-term care home sector arising as a result of the pandemic.

Ontario Regulation 74/20, which was initially passed on March 21st and was discussed in greater depth in an earlier Focus Alert, essentially allows for the redeployment of staff by health service providers within different locations in (or between) their facilities, even where such redeployment might otherwise breach the applicable collective agreement. For the purposes of the emergency order, “health service providers” includes public hospitals, private hospitals, certain psychiatric facilities and the University of Ottawa Heart Institute.

The recent amendments to the emergency order now extend these work deployment powers to allow for the redeployment of a health service provider’s employee(s) to local long-term care homes in order to provide much-needed support and services, including without limitation:

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

The amended emergency order indicates that such redeployment may take place notwithstanding the fact that it might otherwise breach the applicable collective agreement. It clarifies, however, that no new employment relationship is created by the implementation of a redeployment plan: specifically, any staff member of a health service provider that is redeployed to a long-term care home remains employed by the health service provider. Health service providers will further not be considered to have sold a part of their business to the long-term care home for the purposes of section 69 of the Labour Relations Act, 1995 (the “LRA”) simply by virtue of providing them with the required assistance. Nor will the provision of assistance impact whether the health service provider and the long term care home are treated as constituting one employer for the purposes of subsection 1(4) of the LRA.

The participation of a health service provider in any redeployment initiative is voluntary. If a health service provider chooses to redeploy its staff in accordance with the amended emergency order, they can set staff schedules and assign duties for their staff within long-term care homes while assuring the staff that they remain employees of the health service provider.

It is important to note that although there is a separate emergency order in place currently limiting work to a single long-term care home, it does not presently apply to any employees of a health service provider that are redeployed to support a long-term care home. However, the Ministry of Health in its guidance on the subject has strongly recommended that any redeployed employee(s) of a health service provider work only in a single long-term care home while deployed pursuant to the Order.

The emergency order remains in effect for the duration of the declared state of emergency.

 

In Our View

The recent amendments to Ontario Regulation 74/20 are another example of the provincial government’s efforts to address COVID-19 concerns in the long-term care home sector. It is hoped that these measures, in combination with other emergency orders already in place, will enable health services providers in Ontario to effectively and efficiently deploy staff to support long-term care homes in responding to, preventing and/or alleviating any outbreaks on their premises for the duration of the pandemic.

For more information on your rights and obligations as an employer dealing with COVID-19 and other related health and safety issues, 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