Michael Watts, Allan Wells, Susan Newell, Marty Putyra
Mar 26, 2020
Late in the evening of Saturday, March 21, 2020, the Ontario government announced a new temporary order under the March 17, 2020 declaration of emergency (discussed in further detail here) that gives certain health service providers broad new powers to cope with the COVID-19 pandemic (the “Order”). Certain health care providers, such as hospitals, must operate in a pandemic. This creates a complex environment to navigate for hospitals and other health care providers as there will be competing demands between continuing operations, offering care to the public and discharging their responsibility to implement precautionary care principles for workers.
The Order and directives issued under the Emergency Management and Civil Protection Act (“EMCPA”) reflect the government’s public duty to protect Ontarians in general. However, the EMCPA specifically sets out that in the event of conflict between the EMCPA and the Occupational Health and Safety Act (“OHSA”), the OHSA prevails. Therefore, it is important for employers to understand that despite the declaration of a state of emergency and issuance of orders under the EMCPA, their statutory duty to take every reasonable precaution to protect their workers remains paramount.
In this update, we outline:
- To whom these new powers apply, what they allow, and how these powers differ from those granted to other health care service providers such as long-term care licensees;
- considerations relating to health care providers’ unique status under the OHSA and workers’ rights to refuse work in connection with orders made under the EMCPA; and
- concerns relating to the reasonable protection of front-line health workers in the rapidly evolving circumstances of COVID-19.
To whom does this Order apply?
Pursuant to Ontario Regulation 74/20 made under the EMCPA, the Order applies province-wide to:
- a person or entity that operates a hospital within the meaning of the Public Hospitals Act or a private hospital within the meaning of the Private Hospitals Act;
- a person or entity that operates a psychiatric facility within the meaning of the Mental Health Act; and
- the University of Ottawa Heart Institute
(collectively, “Health Service Providers”).
What do these powers allow?
Under the Order, Health Service Providers shall, and are authorized to take, with respect to work deployment and staffing, any reasonable necessary measures to respond to, prevent and alleviate the outbreak of COVID-19. This includes, but is not limited to, the authority to do the following:
- identify staffing priorities and develop, modify and implement redeployment plans;
- 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 for the Health Service Provider;
- require the provision of and collect information from staff or contractors about their likely or actual exposure to the coronavirus (COVID-19) or about any other health conditions that may affect their ability to provide services;
- cancel or postpone services that are not related to responding to, preventing or alleviating the outbreak of the coronavirus (COVID-19); and
- suspend, for the duration of the Order, any grievance process with respect to any matter referred to in the Order.
A closer look at redeployment plans and powers
As described above, the Order affords Health Service Providers the authority to identify staffing priorities and develop, modify and implement redeployment plans. While this is quite broad, the Order provides greater clarification as to what this will entail from a practical perspective. The Order explicitly states that this power includes the authority to do the following:
- redeploying staff within different locations in (or between) facilities of the particular Health Service Provider;
- redeploying staff to work in COVID-19 Assessment Centres;
- 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;
- employing extra part-time or temporary staff or contractors, including for the purposes of performing bargaining unit work;
- using volunteers to perform work, including to perform bargaining unit work; and
- providing appropriate training or education as needed to staff and volunteers to achieve the purposes of a redeployment plan.
Importantly, The Order expressly provides that a Health Service Provider may implement such redeployment without complying with provisions of a collective agreement, including lay-off, seniority/service or bumping provisions.
According to the Government of Ontario’s announcement, this means that, for example, a hospital is able to move a nurse or another unionized employee from an emergency department to a COVID-19 assessment centre without delay, whereas under normal operations a hospital would be required to post a lay-off notice and wait a period of time (often months) before re-assigning the employee. Essentially, these measures would allow for the redeployment of staff without restriction or delay.
Long-term care homes
Subsequently, on March 24, 2020, the Ontario government enacted an order to address the long-term care sector. Pursuant to Ontario Regulation 77/20 (the “LTC Order”) made under the EMCPA, the LTC Order applies province-wide to:
- a licensee within the meaning of the Long-Term Care Homes Act, 2007 (the “LTC Act”); and
- a municipality or board of management that maintains a long-term care home under Part VIII (Municipal homes and First Nations homes) of the LTC Act
(collectively, “LTC Providers”).
Under the LTC Order, LTC Providers are granted similar powers as set out above for Health Service Providers; provided that the following powers are not granted to LTC Providers:
- the authority to redeploy staff to work in COVID-19 Assessment Centres; and
- the authority to cancel or postpone services that are not related to responding to, preventing or alleviating the outbreak of COVID-19.
Ontario's Chief Medical Officer of Health, Dr. David Williams, also announced a new directive for long-term care homes under the LTC Act that restricts residents from leaving a home for short visits with family and friends.
Paramountcy of OHSA obligations
In light of these new powers afforded to Health Service Providers and LTC Providers, it is necessary to consider what recourse workers may have to refuse work or challenge such a redeployment. This is a significant consideration in particular because of the paramountcy of the provisions and regulations of the OHSA over anything in any general or special act. Further, as noted above, the EMCPA confirms that in the event of a conflict between (a) the OHSA and (b) the EMCPA or an order made under subsection 7.0.2(4) of the EMCPA (such as the Order), the OHSA or the regulation thereunder prevails. Therefore, it is important for employers to understand that their statutory duty to take every reasonable precaution to protect their workers still prevails in the context of state of emergency declarations and related orders.
Right to Refuse Work
The OHSA includes provisions that allow workers to refuse to work or do particular work if they have reason to believe that the physical condition of the workplace in which he or she works is likely to endanger himself or herself. However, the OHSA provides that this right to refuse work does not apply to certain workers, including a person employed in the operation of a hospital, sanatorium, long-term care home, psychiatric institution, mental health centre or rehabilitation facility, ambulance service or a first aid clinic or station when (a) the circumstance is inherent in the worker’s work or is a normal condition of the worker’s employment, or (b) the worker’s refusal to work would directly endanger the life, health or safety of another person.
Reasonable precautions for the protection of workers
Under the OHSA, employers have a general duty to take “every precaution reasonable in the circumstances” for the protection of a worker, which is discussed in more detail here. In the reality of ever-changing circumstances surrounding the COVID-19 pandemic, what constitutes “reasonable” can be unclear and can change rapidly depending on a multitude of factors. The debate around the utility of respiratory protection (i.e., N95 respiratory masks, surgical masks, etc.) for frontline health care workers, ongoing since the 2013 outbreak of severe acute respiratory syndrome (SARS), illustrates just how complicated it can be to determine what are reasonable measures of protection. Supply shortages, competing stakeholders, and conflicting guidance from various public health authorities further complicates matters. The determination of what is “reasonable in the circumstances” is therefore not a static decision but must be continually assessed in consultation with the employer’s internal and external stakeholders taking into account all relevant information at the particular time.
For example, a recent research paper reviewing the current published online advice for health care workers (ranging from provincial to international guidance) confirms that the best practice for personal protective equipment specific to COVID-19 is to use N95 respiratory protection. The same paper also asks: if N95 respirators are the protection of choice at a minimum, but are in short supply globally, what is the best recommended protection for health care worker? The author concludes that the current guidance provided by the Centers for Disease Control and Prevention (“CDC”) is the best guidance for health care providers., The CDC guidance identifies the ideal standard, alternatives when the ideal standard is unavailable and guidance to return to the ideal standard when the supply chain is restored. 
Engaging workers – a critical element and requirement under the OHSA
It is clear from the 2003 outbreak of SARS that not only is it important to protect health workers by deploying them outfitted with appropriate PPE in the circumstances, it is also critical to engage them in establishing appropriate protective measures. According to a Senior Advisor to the Commission to Investigate the Introduction and Spread of SARS in Ontario:
It is not simply a matter of appropriately safeguarding health workers, however. They must also feel safe and trust the measures being taken to protect them. Otherwise, they may be less willing to take on the heightened risks inherent in a public health crisis, even if authorities attempt to legally coerce them do so. As the SARS Commission concluded, trying to coerce health workers to work in an unsafe environment they believe will harm themselves and their families is neither ethical nor enforceable.
Given the lessons learned from the SARS outbreak as well as the dedication of all workers and professional staff at hospitals and other health facilities, health care workers clearly understand the continuum of safety measures and reasonable precautions that an employer can take to protect staff in this rapidly evolving environment. They understand that the reasonable precautions have to be rooted in the concept of furthering health equity and continuously analyzed and reassessed due to emerging factors such as the anticipated shortage of N95 masks. Accordingly, during the current COVID-19 crisis employers should ensure that input from workers is appropriately sought and considered to ensure all committed stakeholders remain engaged and committed to the safe delivery of services during the pandemic. In fact, this concept of worker engagement is encoded in the OHSA in the form of the requirement to establish and maintain a joint health and safety committee of which at least half of the members must be employed at the workplace and not exercise managerial functions.
The N95 mask example serves as just a small sample of the complexities involved in seemingly discrete decisions that must be made in the circumstances of the COVID-19 pandemic. As a result, it is unsurprising that the Order and the LTC Order aim to empower vital Health Service Providers and LTC Providers to be as responsive and nimble as possible in order to respond to these constantly evolving demands. However, this does not mean that employers can ignore their duties to engage and protect their workers under the OHSA. Quite the opposite, lessons learned from SARS suggest that worker engagement is key to effectively navigating the current circumstances.
How long does this temporary Order last?
The Order and the LTC Order are valid for 14 days from their respective date of issuance unless revoked or renewed in accordance with the EMCPA.
As the response to COVID-19 is evolving rapidly, from a business continuity perspective, we encourage everyone to continue to stay informed as new developments arise. We have centralized relevant content on our “Coronavirus: Navigating legal implications and business impacts” client communication page.
 RSO 1990, c E9. [EMCPA]
 RSO 1990 c O1. [OHSA]
 Except if the facility is a correctional institution operated or maintained by a member of the Executive Council, other than the Minister, or a person or penitentiary operated or maintained by the Government of Canada.
 Regulation, supra note 1 at Schedule A, section 1.
 Regulation, supra note 1 at Schedule A, section 3.
 Regulation, supra note 1 at Schedule A, section 3(i).
 Government of Ontario, supra note 1.
 Government of Ontario LTC, supra note 10.
 OHSA, supra note 3 at section 2(2).
 EMCPA, supra note 2 at section 7.2(8).
 OHSA, supra note 3 at section 43.
 OHSA, supra note 3 at section 25(2)(h).
 Ontario’s position on the need for N95 respirators has shifted during the past month and the recent detailed guidance issued by Public Health Ontario recommendations for PPE include that N95 respirators are only recommended for healthcare workers involved in aerosol-generating
medical procedures, providing CPAP and/or open suctioning performed on suspect or confirmed COVID-19 patients. “Updated IPAC Recommendations for Use of Personal Protective Equipment for Care of Individuals with Suspect or Confirmed COVID-19” as of March 12, 2020, Available: https://www.publichealthontario.ca/-/media/documents/ncov/updated-ipac-measures-covid-19.pdf?la=en. [IPAC Recommendations]. Although the IPAC recommendations reference that changes have been made because new information has become available, Ontario’s approach has been criticized, with one author suggesting “… COVID-19 is not known to be transmitted by aerosols, but the missing qualification is that this is only because it has not yet been studied.”; see National Union of Public and General Employees (NUPGE) and Health Sciences Association of BC (HSA), Respiratory Protection for Health Workers Caring for COVID-19 Patients (March 19, 2020), Available: https://nupge.ca/sites/default/files/documents/COVID-19%20HSABC%20NUPGE%202020%20Paper.pdf. [Murphy].
 Murphy, supra note 17.
 In response to the change in the IPAC Recommendations to remove the recommendations regarding use of N95 respiratory protection: “Staff must safely use all appropriate PPE including gloves, gown, goggles or eye protection and fit tested N95 respirators for clinical assessment, examination and testing. Other workers in the hospital who come within the patient’s environment must also use appropriate PPE as indicated above.“ Murphy states that “It is not clear when the Ministry of Health de-prioritized “health equity” as an organization value, but as of March 12 2020, the Public Health Ontario web site presented a changed position on the need for N95 respiratory protection…”
 The current CDC guidance is available here. The guidance identifies acceptable alternatives when the supply chain cannot meet the demand for the recommended products. It also identifies what measures should be implemented when the supply chain is restored, together with a checklist to optimize the current supply of N95 respirators.
 Passamai, Mario A. “SARS and Health Worker Safety: Lessons for Influenza Pandemic Planning and Response” (October 2007), HealthcarePapers Volume 8 No 1, available: https://www.longwoods.com/content/19354. [Possamai]
 OHSA, supra note 3 at section 9.
 Government of Ontario, supra note 1.
 EMCPA, supra note 2.