COVID-19: Ontario Releases Single-Employer Emergency Order for Long-term Care Sector

Updated April 16, 2020

On April 14, 2020, the Ontario government took steps to address and prevent further outbreaks in long-term care (LTC) homes across the province.  The Emergency Order, under Ontario Regulation 146/20, “Limiting Work to a Single Long-term Care Home” (the “Order”) , prevents employees working in the long-term care (LTC) and retirement home sector from working for more than one Health Service Provider or retirement home.

Unfortunately, despite devastating outbreaks in other care home settings (notably in the Developmental Services (“DS”) sector), the government has not extended this order beyond LTC and retirement homes.  This is very concerning given the number of outbreaks at play and the extreme risk to vulnerable people in the DS sector.  One hopes that further orders will soon be issued by the government to address this omission.

Until then, PooranLaw offers the following summary of the Order, with a discussion of its implications for employers supporting people who are vulnerable to Covid-19.

Who is affected?

The Order applies to LTC home providers and Municipal Homes for the Aged and the employees of these employers who also work in certain other locations (“Affected Employees”).

Affected Employees are subject to special rules when they work for another another LTC home, Municipal Home for the Aged, or “Health Services Provider” within the meaning of the Connecting Care Act (an extensive list that includes all public hospitals, psychiatric facilities, LTC homes and Municipal Homes for the Aged, home care services, and community health centres) (“Affected Employers”).

Notably, this list does not include care homes and group homes funded by the Ministry of Children, Community and Social Services – a very concerning omission.

What does this mean for Affected Employees?

The Order imposes two requirements on Affected Employees:

1. Effective immediately, and in any event by no later than 5:00 p.m. on Friday, April 17, 2020, each Affected Employee must notify their employer(s) that they are subject to the Order. The obligation to notify applies only to Affected Employers (i.e. other LTC homes, retirement homes and Health Services Providers). Unfortunately, it does not apply to other employers, such as DS sector employers.
2. Commencing at 12:01 a.m. on Wednesday, April 22, 2020, an Affected Employee may not then perform work for another Affected Employer. Once again, this does not restrict Affected Employees from working in DS group homes or other care homes supporting vulnerable and medically fragile people.

This Order trumps the terms of any collective agreement, thereby giving Affected Employers “an out” and a protected basis on which to exclude Affected Employees from their workplace.  It also provides protection to Affected Employees who comply with these requirements – preventing them from being terminated for failing/refusing to perform work for more than one employer in accordance with the Order.

At the same time, many LTC workers rely on multiple jobs to make ends meet.  In the absence of commitments from employers to provide full-time hours or from the government to supplement lost earnings, some part time LTC employees may feel that they are better off staying home and receiving $2000 per month in Canadian Emergency Response Benefits (CERB).  This will only exacerbate the staffing challenges employers in this sector are facing.  The federal government has indicated they are considering some form of subsidy in order to alleviate financial hardship and keep staff working, though no details are available on this front yet.   British Columbia has already implemented supports for employees in this situation, after issuing a single-employer order almost three weeks ago.  Unfortunately, no similar supports have been offered for workers in Ontario as yet.

What does this mean for LTC Employers?

LTC providers are also required to post a copy of the Order in a conspicuous location within their workplace.  It is recommended that a plain language explainer of this Order be circulated by these employers, together with a copy of the Order, to all employees.

In addition, beginning at 12:01 a.m. on Wednesday, April 22, 2020, LTC providers are required to ensure that any employee who performs work in a home they operate or maintain is not also performing work for another Affected Employer.   How such controls are to be exerted over Affected Employees is not indicated in the Order – however, clear directives to staff together with appropriate warnings of corrective action for failure to comply with the Order is recommended.

Employers bear the responsibility of enforcing the requirements imposed on Affected Employees, and may be subject to fines for failing to do so.

 What is the impact on staffing for Affected Employers?

The LTC sector is notorious for the precarity of its workforce.  Many employees in this sector hold two or more jobs in LTC and related sectors (DS, autism services, child care, and services for people with disabilities) in order to make ends meet.

When this Order comes into effect, these workers will have to choose to work for one Affected Employer.  This means that other Affected Employers (again this means LTC, retirement homes, and other Health Services Providers) will lose the benefit of these employees and their own under staffing situation may be exacerbated.

What are the implications for employers in “other” sectors?

For Employers in related sectors that do not fall within LTC, retirement homes or the definition of “Health Services Provider”, the impact of the Order (and its omissions) is potentially much worse.  Affected Employees (employees who work for LTC homes) are not restricted from continuing to work in other settings.  This means that they can continue to work in one (1) LTC home, as well as in multiple “other” settings, including developmental services group homes, intervenor services or a multitude of other employment settings supporting vulnerable, elderly and potentially medically fragile people.   As a result, the risk of these employees acting as vectors in “other” settings remains extremely high.

What can “other” employers do to reduce the risk?

In the absence of formal government support for single-employer restrictions outside the LTC sector,  these non-LTC employers have some stark choices to make.

Most employers have already moved to “silo” workers internally – meaning that workers only work in a single location (usually a single group home) within an employer’s operations.  This measure is an important move to prevent the spread of outbreaks transmitted by staff working amongst multiple locations.

However, most employers have not yet implemented an “exclusive” employment requirement, restricting employees from working for more than one (1) employer.  Hesitancy on this front stems from the potential a) staffing and b) legal challenges that may flow from implementing an exclusive-employment requirement on staff.

1. From a staffing perspective, restricting staff to a single-employer may give employees an easy out (i.e. an excuse to be laid off, take a leave, or otherwise avoid working in what they perceive to be a risky environment).  It may also result in employees picking and choosing where they work based on where they receive the highest wage rates, where they can work the most hours, where the risk of outbreak is lowest, and/or where the work is least onerous.  This may result in agencies most in need of support seeing a further reduction in available staff.
2. From a legal perspective, employers implementing unilateral single-employer restrictions face potential legal challenges.  Non-union employees may claim “constructive dismissal” and unions may grieve such restrictions as exceeding management rights.   While some employers, notably DS agencies, are subject to an Emergency Order (O.Reg. 121/20)  that grants them the authority to institute “any measure” reasonably necessary to prevent, respond to and alleviate the COVID-19 pandemic – which arguably gives them the authority to impose an exclusive employment restriction – there remains a risk in doing so.  Employees may claim that such moves are not “reasonably necessary” and therefore not protected by the Emergency Order.  Furthermore, many employers supporting vulnerable people do not have the benefit of this Emergency Order, including intervenor services provider and the forgotten families who privately contract with workers to provide supports for their loved ones with disabilities.

 Next Steps

Fortunately, many employees, and the unions that represent them,  recognize the shared health and safety interest in single-employer restrictions and have been supportive of employers who implement them. Indeed, before the Single-Employer Order was issued, many LTC Homes and some group home providers in the DS sector had already implemented such measures.  Those that have implemented such restrictions have offered guarantees of full-time work and other benefits to offset any wage losses employees would otherwise suffer.

While not everyone is on the same page, its beyond dispute that in group homes locked down due to Covid-19 the principle (if not the only) source of infection is from staff.  With outbreaks now rampant in LTC facilities (133 at last count) and becoming increasingly so in the DS sector, the risks of cross contamination by shared staff from one sector and one agency to the next is extremely high

In the absence of meaningful government intervention to protect staff and people supported outside of LTC, all employers providing continuing care for vulnerable people need to be taking every reasonable measure to protect the health and safety of the people they support and their workers.  This may include staff exclusion.  Any such extraordinary measures should, however, only be considered after seeking appropriate legal advice, discussion with your union (if any) and putting in place appropriate measures to reduce the risks discussed above.

PooranLaw will continue to monitor the legal developments and work closely with advocates seeking government supports for agencies, their workers and the people they support during this crisis.  In the meantime, if you are considering implementing single-employer restrictions for your workers we encourage you to reach out to your regular PooranLaw lawyer, or any member of our employment and labour team to discuss your options.