COVID-19: Emergency Order for DS Sector and New Residential Relief Fund

Updated April 8, 2020

On Saturday, April 4, 2020, the Ontario government announced critical measures to address the unique challenges faced by people with disabilities, their families and the not-for-profit developmental services (DS) agencies that support them.  Specifically, the government announced:

1. An Emergency Order (the “Order”) for DS agencies to ensure adequate supports for people with developmental disabilities during the COVID-19 crisis. The full order is available here; and
2. A $40 million Residential Relief Fund for residential services for vulnerable people (see the official news release here). Residential Relief Fund will cover costs such as additional staffing, residential respite for caregivers; personal protective equipment and supplies; initiatives to support physical distancing and transportation to minimize client exposure.

The following is a summary of these two measures and their implications for employers in the Developmental Services Sector:

The Order

The Order parallels Emergency Orders issued for Health Care Providers, Long Term Care Homes, and Retirement Homes over the past two weeks.  The Order is designed to address staffing shortfalls in the sector by requiring and authorizing employers to take “any reasonably necessary measure to respond to, prevent and alleviate the outbreak of the coronavirus” when it comes to staffing and deployment.

What agencies does the Order apply to?

This order applies to “service agencies” and “services and supports” covered by the Services and Supports to Promote the Social Inclusion of People with Developmental Disabilities Act, 2008 (the “Social Inclusion Act”).  Generally speaking, this means the Order to any agency that is funded by the Ministry of Children, Community and Social Services.  At present, it does not appear that the Order extends to similarly situated agencies that fall outside of the Social Inclusion Act and are funded under the Ministry of Children, Community and Social Services Act (for instance, Intervenor Services providers).  This may leave many employers that provide equivalent services to equally vulnerable people without the important powers needed to address staffing challenges during this crisis.  We would encourage the government to extend this order to these employers who are facing analogous challenges.

How long does the Order apply?

The Order and the requirements, powers and exemptions for DS agencies thereunder will continue to apply for the duration of the declared emergency.  At present, the declared emergency is scheduled to come to an end on April 15, 2020.  However, it is widely believed that the declared emergency will be extended well beyond that date.

What powers to agencies have under this Order?

This Order requires and authorizes agencies to take “any reasonable measures” to identify staffing priorities and develop, modify and implement redeployment plans, including the following:

• change work assignments and scheduling
• assign non-bargaining unit staff to perform bargaining unit work
• defer or cancel vacation, absences or other leaves, regardless of whether they are established by statute, regulation, agreement or otherwise
• assign and employ extra part-time/temporary staff, or contractors, and use volunteers, to perform work (including bargaining unit work)

• Conduct any skills and experience inventories of staff to identify possible alternative roles in any area.
• Require and collect information from staff or contractors about their availability to provide services for the service agency.
• Require and collect information from staff or contractors about their likely or actual exposure to Covid-19, or about any other health conditions that may affect their ability to provide services and supports.
• Suspend, for the duration of this Order, any grievance process with respect to any matter referred to in this Order.

Most importantly, DS agencies are required and authorized to take reasonable measures to take the foregoing steps “despite any statute” (conceivable including the Bill 124 Wage Restraint Legislation discussed here) and without complying with any provisions of a collective agreement, including lay-off, seniority/service or bumping provisions.  While this does not allow DS agencies to ignore applicable contracts and collective agreements in their entirety, those provisions related to deployment of staff, scheduling, layoffs and recalls can be ignored for the purposes of addressing staffing temporarily during this crisis.

Despite these extraordinary powers, employers should still exercise caution when implementing measures that do not conform to the requirements of their contracts or collective agreements.  Employers are encouraged to use these powers only in a manner “reasonably necessary” to address the staffing and deployments needs, failing which employers may be subject to grievances and liability.

What does this mean for regulatory obligations under the Social Inclusion Act and Quality Assurance Measures Regulation (QAM)?

Under the Order, DS agencies are subject to relaxed standards for the purposes of reporting, documentation, staffing levels, screening, establishing alternative residential arrangements, and orientation.  Specifically:

1. Reporting. Agencies are not required to report any information to the Ministry as required by the Regulation or the policy directives, with the exception of the submission of serious occurrence reports as required by the policy directives.
2. Documentation.  Agencies are not required to document information, unless it is necessary to ensure the safety, security and well-being of persons with developmental disabilities who receive services and supports from the service agency. For greater certainty, agencies must continue to:
   • • maintain records and documentation respecting complaints;
     • prepare and maintain separate books of accounts and financial records for persons with developmental disabilities receiving assistance from the service agency;
     • document information relating to health promotion, medical services and medication for persons with developmental disabilities; and
     • document any alleged, suspected or witnessed incidents of abuse of persons with developmental disabilities.
3. Individual Support Plans. Agencies are not required, during the Emergency Order, to review or document any updates to the individual support plan of a person with a developmental disability, unless an update includes information relating to safeguards necessary to protect the health and safety of the person with a developmental disability when receiving services and supports.
4. Behavioural Support Plans. Agencies are not required to conduct a review of the behaviour support plan of a person with a developmental disability who has challenging behaviour, during the Emergency Order, unless there are significant changes related to the use of intrusive behaviour intervention strategies.
5. Staffing Levels. Where agencies are not able to maintain support staff at ‘a level identified in the person’s individual support plan, then during the Emergency Order, a service agency may adjust staffing levels and use other measures to address the safety, security and well-being of persons with developmental disabilities.
6. Screening. Where agencies are not able to arrange for a police records check for all new staff members and volunteers, then during the Emergency Order agencies may defer this requirement provided that they adopt appropriate measures to ensure the safety of persons with developmental disabilities
7. Orientation of Board Members. Agencies are not required to provide any orientation, refreshers or reviews to members of the board of directors, with the exception of providing orientation to all new members of the board of directors on the service agency’s policies and procedures on abuse prevention, identification and reporting.
8. Training and Orientation. Agencies are not required to meet QAM training and orientation requirements provided that they ensure staff and volunteers are sufficiently trained to meet the specific individual needs of the persons with developmental disabilities supported by staff and volunteers in a manner that promotes their health, safety and well-being while at the same time ensuring the personal safety of the staff and volunteers. However, physical restraints may only be used by staff and volunteers who have been trained in accordance with the requirements set out in the Regulation and the policy directives.  Where agencies are not able to provide refresher courses, including theory and practice of all physical restraint holds, according to a retraining or recertification schedule developed by the training provider or as recommended by the training provider, agencies may defer this requirement.
9. Care requirements. Agencies are not required to provide any orientations for persons with developmental disabilities as required by the Regulation, with the exception of the mandatory education and awareness building on abuse prevention and reporting. For greater certainty, agencies are still required to ensure that public health information is available and presented in a language and manner, and with the level of support, that a person with a developmental disability needs.
10. Temporary residential settings. In circumstances where alternate residential arrangements are needed, agencies may do so without following the requirements identified in QAM, so long as they adopt other measures to ensure the health and safety of persons receiving service.

Despite the relaxation of many of the obligations outlined in the Social Inclusion Act and QAM, agencies are nonetheless still responsible for ensuring a safe and secure environment for persons with a developmental disability and must comply with any order or directive issued under the Health Protection and Promotion Act as it relates to a service agency.

The foregoing requirements, powers and exemptions from quality assurance measures and directives are extraordinary but much needed measures taken by the provincial government to address unprecedented challenges in maintaining life sustaining supports for people with developmental disabilities, many of whom are particularly vulnerable to COVID-19.  We commend the government for recognizing and address the needs of this sector.

The Residential Relief Fund

The province has also announced $40 million specifically to support residential service providers through the COVID-19 Residential Relief Fund (CRRF).

According to the press release issued by the government earlier today, the CRRF will help to address financial and service delivery pressures.  Funding will be provided upon request to agencies with residential service programs.

Eligibility

The government has indicated that the following types of programs will be eligible for CRRF:

• • Children’s residential services, including residential programs for Complex Special Needs, Child Welfare, Youth Justice, out-of-home respite for children with physical and/or developmental disabilities, and children’s developmental services
  • Gender-based violence residential programming, including Anti-Human Trafficking and Violence Against Women
  • Indigenous Healing and Wellness Strategy residential programming
  • Intervenor services
  • Adult Developmental Services residential supports.

Scope of Funding

According to the government’s announcement, CRRF funding is to be used as needed to support the health and safety of clients and staff at this time. Requests that align with the scope of the CRRF, which are determined to be appropriate, will be approved for 30-day increments at a time.  The government has been clear that this will be available only where an employer is experiencing pressures that cannot be addressed through the flexible use of existing funding.

The following types of exceptional costs can be covered through CRRF:

• • additional staffing
  • residential respite for caregivers
  • personal protective equipment and supplies
  • costs to support social distancing and transportation to minimize client exposure
  • additional cleaning costs.

Originally, the Provincial Government also included additional “compensation” for staff as an eligible cost under the CRRF. However, as of April 7^th, the Provincial Government has removed the language respecting compensation from the list of eligible expenses.

We had hoped that this fund could be used to provide premiums that might be exempt from Bill 124’s limits on compensation growth. This could have addressed critical recruitment and retention issues during the crisis. However, this is now less likely given the new changes to eligible expenses.

PooranLaw will provide updates on the CRRF and the Emergency Order as new information emerges.  In the meantime, if you have any questions we encourage you to speak with your regular PooranLaw lawyer or any member of our team.

Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.