Posted May 11, 2020
Access to PPE in health care, long-term care homes (“LTC Homes”) and DS sector settings is an ongoing issue. There are significant health and safety concerns stemming from significant outbreaks in long-term care homes and this has spawned numerous grievances and related legal action for interim relief.
In Ontario Nurses Association v. Eatonville/Henley Place, 2020 ONSC 2467 Justice Morgan of the Ontario Superior Court of Justice granted an interim injunction against four long-term care homes pending the outcomes of the nurses’ grievance arbitration. Each home had experienced outbreaks of COVID-19. The Ontario Nurses Association (the “ONA”) on behalf of the Applicant nurses alleged that four facilities were breaching Directives #3 and #5 issued by the Chief Medical Officer of Health (the “CMOH”) under the Health Protection and Promotion Act, RSO 1999, c H7 (“HPPA”) by failing to provide appropriate access to PPE, including N-95 masks, and failed to implement necessary administrative and isolation measures in order to protect themselves and residents. They further argued that such failure to take reasonably necessary precautions by providing PPE, violated the Occupational Health and Safety Act, and the nurses’ Charter rights.
Directive #3 provides guidance on the required COVID-19 precautions and procedures to be used in LTC homes during outbreaks, including cohorting well and unwell staff and residents, and ensuring appropriate PPE. Directive #5 from April 10, 2020, specifically applies to LTC homes, which requires:
- Public hospitals and long-term care homes must explore all available avenues to obtain and maintain a sufficient supply of PPE
- If a health care worker determines, based on the PCRA, and based on their professional and clinical judgement, that health and safety measures may be required in the delivery of care to the patient or resident, then the public hospital or long-term care home must provide that health care worker with access to the appropriate health and safety control measures, including an N95 respirator. The public hospital or long-term care home will not unreasonably deny access to the appropriate PPE.
Ultimately, Justice Morgan ordered the LTC homes provides nurses with access to fitted N-95 masks and other appropriate PPE when nurses, as the first point of care, determine what PPE is appropriate and required in the circumstances. The decision recognizes the health and safety risks facing frontline workers and gave increased powers to frontline workers to access PPE.
Prior to seeking the injunction, the Applicant nurses above, had filed individual grievances and policy grievances against the LTC homes under their collective agreements. The grievances were consolidated and Arbitrator Stout issued his notable award days after the Court’s injunction in Participating Nursing Homes v Ontario Nurses’ Association, 2020 CanLII 32055 (ON LA). The decision affirmed:
- The CMOH’s Directives #3 and #5 must be followed
- Staff, LTC homes and government must work together to ensure adequate and appropriate PPE supply and storage and to ensure N-95 fittings are taking place
- Homes “will advise staff and residents who test positive so that reasonable and proper safety precautions can be put in place.”
Justice Stout recognized the urgency of the matters raised by the ONA and instead of making any determinations of fault, the decision provides guidance on how to (1) further positive labour relations and (2) balance the urgent health and safety concerns within LTC homes faced by staff and residents and the practicalities of ensuring adequate access to PPE during the pandemic.
The decision suggests that there is a high standard imposed on employers when it comes to taking all “reasonable precautions” to ensure the health and safety of staff and residents, and to reduce risk – regardless of whether that risk is supported by scientific evidence. While the decision specifically applies to LTC homes, the decision establishes important guidance for DS sector agencies in terms of following public health directives regarding PPE access in day-to-day decision-making and in developing and implementing outbreak plans and procedures moving forward. Some of the key findings from this decision that DS sector agencies should keep in mind include:
- Nurses must be provided with PPE, including N-95 masks if, in the nurses reasonably professional and clinical judgment, they determine such PPE is necessary.
- Nurses cannot be impeded, retaliated against or otherwise disciplined for exercising their right to PPE and N-95 masks.
- N95 masks must be worn whenever certain aerosol-generating medical procedures are performed (including the procedures identified in the decision)
- LTC homes reserve the right to store PPE in secure locations, however, there must be a sufficient supply of all appropriate sizes of fit-tested N-95 masks readily available
- LTC homes must actively pursue procurement options to supply sufficient PPE and will share efforts with their Joint Health and Safety Committee
- LTC homes continue to maintain their management rights to manage performance and discipline where appropriate, subject to grievance rights of staff
- LTC homes must implement cohorting and isolation measures
PooranLaw will continue to monitor labour and employment legal developments. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
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.