Although the community spread of the COVID-19 pandemic appears to have peaked in the province according to public health officials in Ontario, concern about the spread of COVID-19 in long-term care, retirement and congregate care settings has significantly increased. COVID-19 outbreaks are occurring throughout the province among these vulnerable populations, resulting in increased mortality and staffing challenges.
The Ontario government has released its COVID-19 Action Plan: Long-Term Care Homes and has issued a series of temporary emergency orders under the Emergency Management and Civil Protection Act (EMCPA) to address front line workers caring for vulnerable communities, including seniors, people with various disabilities and the homeless. Health care providers are being asked to restrict or redeploy staff or to have them assume different responsibilities or duties. It is important to ensure that these actions are done in a considered manner that protects the organizations and providers involved.
The emergency orders issued by the government include:
- Restricting long-term care home employees from working in more than one long-term care home or health care setting, with compliance required by April 22, 2020 (Order to Limit Work to a Single Long-Term Care Home);
- Restricting retirement home employees from working in more than one retirement home, long-term care home or health care setting, with compliance required by April 22, 2020 (Order to Limit Work to a Single Retirement Home);
- Providing local health integration networks (LHINs) with the ability to request that contracted service provider organizations redeploy staff to provide health care and related social services as needed, including in community care settings, long-term care homes, supportive housing, retirement homes and hospitals (Order to Deploy Employees of Service Provider Organizations);
- Providing flexibility to municipalities and District Social Service Administration Boards, so they can offer reassignments to certain staff to where there is local need during the COVID-19 outbreak, including child care, by-law enforcement, homeless shelters and the provision of services to homeless persons (Order for Work Deployment Measures for District Social Services Administration Boards; Order for Work Deployment Measures for Municipalities);
- Providing flexibility to ambulance services to hire and assign college students who have not yet completed exams or graduated to provide services commensurate with their competence level and scope of practice, so that there are enough paramedics and emergency medical attendants (Regulation).
Updating COVID-19 Long-Term Care Strategy
In conjunction with the issuance of the emergency orders, the Ontario government’s COVID-19 Action Plan: Long-Term Care Homes includes measures to prevent further outbreaks and deaths from COVID-19 in long-term care homes, including:
- Enhanced testing, screening and surveillance;
- Outbreak management support, expertise from public health and infection control expertise to contain and prevent outbreaks, as well as additional training and support for working in outbreak conditions;
- Redeploying staff from hospitals and home and community care to support the long-term care home workforce and respond to outbreaks as well as ongoing recruitment initiatives.
Order to Limit Work to a Single Long-Term Care Home
Pursuant to the Order to Limit Work to a Long-Term Care Home, persons who perform work as an employee of a long-term care home provider, and who also perform work at any other health service provider (including public and private hospitals, psychiatric facilities and long-term care homes) or retirement home is required to provide notice to each of those employers that he or she is subject to this Order. Employees were required to provide notice on or before April 17, 2020.
Despite any collective agreement, as of April 22, 2020, an employee of a long-term care provider who performs work in a long-term care home must only work at one home. An employee is no longer permitted to perform work at another long-term care home operated or maintained by the long-term care provider or as an employee of any other health service provider or retirement home.
The Order to Limit Work to a Single Long-Term Care Home places an onus on the long-term care home to ensure that a copy of this Order is posted in the home. Such notice must be posted in a conspicuous and easily accessible location.
Order to Limit Work to a Single Retirement Home
The Order to Limit Work to a Single Retirement Home contains virtually identical language as the Order to Limit Work to a Single Long-Term Care Home. In respect of the Order, the deadline to provide notice to other retirement home or health service provider employers was April 20, 2020. Furthermore, despite any collective agreement, as of April 22, 2020, an employee of a retirement home licensed under the Retirement Homes Act who performs work in a retirement home is not permitted to work at another retirement home operated by the licensee; in another retirement home; or as an employee of a health service provider.
As above, the Order to Limit Work to a Single Retirement Home places an onus on the licensed retirement home to ensure that a copy of this Order is posted in each retirement home at which the licensee operates. Such notice must be posted in a conspicuous and easily accessible location.
Order to Deploy Employees of Service Provider Organizations
The Order to Deploy Employees of Service Provider Organizations authorizes a LHIN to request that a contracted service provider organization to provide health care and related social services, other than community services within the meaning of the Home Care and Community Services Act, 1994 (HCCSA). A contracted service provider organization includes organizations that provide homemaking services, personal support services or professional services within the meaning of the HCCSA that are purchased by the LHIN.
The LHIN is authorized to identify the setting, which could include community care settings, long-term care homes, supportive housing, retirement homes or hospitals and is authorized to fund those services. The contracted service provider organization is authorized to accept the request and to deploy its employees to provide the requested services, despite any other statute, regulation, policy or arrangement or agreement to the contrary.
Importantly, an employee of the contracted service provider organization is not required to agree to provide the requested service.
Ministry’s Request of Hospitals to Provide Support to Long-Term Care Homes
On April 17, 2020, the Ministry of Health, Ontario Health, the Ministry of Long-Term Care and the Associate Chief Medical Officer of Health issued a memorandum to the CEOs of Public Hospitals requesting the hospitals’ assistance to support long-term care homes as part of the COVID-19 pandemic response. Specifically, hospitals were asked to voluntarily identify staffing resources, including infection prevention and control (IPAC) assistance, medication administration, and nursing and personal support workers to assist long-term care homes facing critical staffing shortages.
The emergency orders issued to date under the EMCPA do not provide authority to direct a hospital employee to be redeployed to a long-term care provider. The existing orders do allow volunteers and other workers to work in a long-term care home setting, despite any statute, collective agreement or agreement that would otherwise restrict this activity.
The provision of hospital resources is voluntary. It is expected that hospitals will enter into a secondment agreement or agreements with long-term care homes. Hospital staff would be seconded to the long-term care home, while retaining their employment status with the hospital.
While an employee of a long-term care home cannot also work at a hospital, hospital employees are not restricted to working in one setting.
Recommendations and next steps
The redeployment provisions under the various emergency orders issued under the EMCPA provide flexibility for certain health care providers to take any “reasonably necessary measure” to respond to, prevent and alleviate the outbreak of COVID-19 for patients, despite existing employment agreements, collective agreements, policies or statutes. However, there are a number of organizational risks. Although there is a need to move quickly in response to the COVID-19 pandemic, it is important to ensure that your fundamental processes are well thought out and risk mitigation strategies are in place.
- reviewing the skills, expertise and competence of volunteers and additional care providers;
- identifying appropriate roles and scope of practice, ensuring necessary training and supervision, including as it relates to personal protective equipment;
- clarifying the understanding of applicable policies and procedures;
- ensuring clear terms of collaboration between health service providers, including their respective roles, responsibilities and allocation of risk;
- implementing appropriate documentation, including waivers, confidentiality terms, secondment agreements, collaboration agreements and others as applicable to the circumstances;
- when using template documents, ensuring that the documents accurately reflect the arrangement and your interests are addressed so that the organization is appropriately risk protected;
- confirming insurance coverage.
It is recommended that health service providers seek specific advice to understand how the various orders and directives intersect and to ensure that the organization is properly protected when utilizing or redeploying staff or volunteers in other settings.
Miller Thomson is closely monitoring the COVID-19 situation to ensure that we provide our clients with appropriate support in this rapidly changing environment. For articles, information updates and firm developments, please visit our COVID-19 Resources page.