In late April, the Ontario government made a number of changes to the regulations under the Emergency Management and Civil Protection Act (“EMCPA”). More specifically, two new temporary emergency orders were put in place, while another existing emergency order was amended. In all three cases, the intention of the new or amended emergency orders is to provide greater flexibility within the health care sector as the province faces its highest level of COVID-19 cases, including those requiring hospitalization, since the pandemic began last March. Below is a brief overview of the recent changes brought about by these emergency orders:
This new Order authorizes independent health facilities (“IHFs”) as defined in the Independent Health Facilities Act to take any reasonably necessary measure in respect of work deployment or staffing to assist hospitals to respond to, prevent and alleviate the outbreak of COVID-19. This includes but is not limited to the following measures, even if they would otherwise breach another statute, regulation, order, policy or agreement (including a collective agreement):
- Redeploying staff to provide assistance within a hospital,
- Changing the assignment of work, including assigning non-bargaining unit employees or contractors 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, and
- Providing appropriate training or education as needed to staff to achieve the purposes of any redeployment plan.
An IHF may implement redeployment plans without complying with the provisions of an employment agreement or the provisions a collective agreement, including lay-off, seniority/service or bumping provisions, and may:
- Conduct any skills and experience inventories of staff to identify possible alternative roles in priority areas,
- Require and collect information from staff or contractors about their availability to provide services,
- Require the provision of and collect information from staff or contractors about their likely or actual exposure to COVID-19, or any other health conditions that may affect their ability to provide services, and
- Suspend, for the duration of this Order, any grievance process with respect to any matter referred to in this Order.
Although the implementation of these measures by IHFs is voluntary, where they choose to do so, it is important to note as follows:
- Staff of the IHF who provide assistance within a hospital will continue to be considered employees of the IHF,
- The deployment or provision of assistance to a hospital will not impact whether the IHF and receiving hospital are treated as constituting one employer for the purposes of the Labour Relations Act, 1995,
- The deployment or provision of assistance to a hospital will not cause the IHF to be considered to have sold a part of its business to the receiving hospital for the purposes of the Labour Relations Act, 1995,
- The deployment or provision of assistance to a hospital will not cause the IHF to be considered to have amalgamated with the receiving hospital, or to have transferred all or substantially all of its assets to the receiving hospital, for the purposes of the Public Sector Labour Relations Transition Act, 1997, and
- The deployment or provision of assistance to a hospital will not impact whether the IHF is considered to be a hospital for the purposes of the Hospital Labour Disputes Arbitration Act.
This new Order authorizes health care professionals who are either members of a College or who hold an out-of-province certificate and who are employed, contracted, appointed or otherwise engaged by a hospital to provide services outside of their regular scope of practice. That said, they are authorized to do so only where:
- It is necessary to respond to, prevent or alleviate the effects of the outbreak of COVID-19,
- The services are consistent with the duties that have been assigned or the privileges that have been granted by the hospital, and
- The health care professional acts in a manner consistent with measures taken by the hospital under O. Reg. 74/20 (Work Redeployment for Certain Health Service Providers) under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020.
Of note, health care professionals who act outside of their scope of practice in accordance with this order continue to be subject to the jurisdiction of their College for incompetence related to the provision of their services.
This Order, which initially came into effect on April 9, 2021, was recently amended so as to expand its application beyond hospitals to long-term care homes and retirement homes as well. As a result, Ontario Health and Community Care Support Services (HCCSS) are now authorized to redeploy their staff to long-term care homes and retirement homes, subject to the terms and conditions of the Order.
In Our View
As it currently stands, all three emergency orders detailed above are set to be revoked on May 5, 2021. However, should the provincial state of emergency declared pursuant to the EMCPA be extended beyond that date, these emergency orders may be as well.
It can be difficult to keep up with regularly changing legislation related to COVID-19. However, for those affected by the changes, including employers in the health care sector, it is important to remain abreast of what is (or is not) permitted at any given time.
For more information on your rights and obligations as an employer dealing with COVID-19 or related issues, please contact Porter Heffernan at 613-940-2764, J.D. Sharp at 613-940-2739, Vicky Satta at 613-940-2753 or Mélissa Lacroix at 613-940-2741.