June 5, 2020

Author: Tory Hibbitt

Long-term care facility owners, managers, and operators are aware that COVID-19 has seriously impacted both residents and nurses at long-term care (“LTC”) facilities in Canada.  The management and limited supply of personal protective equipment (“PPE”) has resulted in nursing staff filing safety complaints. In a recent decision by the Ontario Superior Court of Justice, direction was given on the application of Directives issued by the Chief Medical Officer of Health (“CMOH”) in response to COVID-19. 

Health and Safety Concerns in Long-Term Care Facilities Arising From COVID-19

On April 23, 2020 the Ontario Superior Court of Justice heard the applications brought by nursing staff of four long-term care facilities seeking mandatory Orders addressing health and safety concerns arising from COVID-19. The applicants alleged ongoing breaches of Directives issued by the CMOH, specifically, those Directives which pertain to the supply of personal protective equipment (“PPE”) and isolating and cohorting measures to mitigate the spread of the virus by separating those who are infectious from those who are not. 

The Applicants argued the lack of necessary PPE and proper infection control procedures amounted to a breach of: i) the collective agreements between the Ontario Nurses’ Association (ONA) and the LTC facilities, ii) the public health Directives relating to COVID-19, iii) the Occupational Health and Safety Act, RSO 1990, c O1 (“OHSA”), and iv) section 7 of the Charter of Rights and Freedoms. As such, the Applicants sought an Order restraining the breaches pending the labour arbitrations that had been commenced by the ONA against the LTC homes.

Grievances Brought by The Ontario Nurses’ Association

Generally speaking, the grievances brought by the ONA arose from similar complaints across the four facilities pertaining to the facilities’ failure to properly implement COVID-19 protections for the nurses. The common themes include:

• Failure to impose appropriate physical distancing, isolating or cohorting measures where residents or staff showed COVID-19 symptoms; requiring staff to report to work rather than self-isolate despite exposure to residents with pending test results;
• Improperly denying or restricting PPE by providing masks only to nurses attending to residents with confirmed cases of COVID-19, not to those attending to symptomatic but unconfirmed residents; in some cases, denying PPE even after confirmation of COVID-19 on the basis of limited supply of N95 masks; and
• Providing inadequate and/or strictly rationed access to N95 respirators, keeping them stored under lock and key to be provided by administrators as opposed to being readily available to medical staff as needed 

Though the Applicants had advanced grievances under their collective agreement against each of the LTC homes, the delay associated with the arbitrations process led to their application to the court for urgent interlocutory relief, with the labour arbitration to follow. 

The Respondent LTC facilities claimed they were in compliance with the Directives, and framed the matter as one centred on the allocation of limited but essential medical resources. They argued the Directives require decisions on resource allocation balance what the nurse determines as necessary at the point of care, with what the LTC facility considers reasonable or appropriate in the circumstances, which entails the interest of conserving scarce medical supplies.

Given the limited supply of N95 masks, the Respondents argued the interests to be weighed by the Court were the narrower, personal interests of the nurses against the broader, public interests of others within LTC homes and across the Province. The court was critical of this interpretation, and ultimately held, “where the lives of nurses and patients are placed at risk, the balance of convenience favours those measures that give primacy to the health and safety of medical personnel and those they treat.” (at 94)

The Court ordered the Respondents provide their respective nursing staff with access to N95 masks and other appropriate PPE when determined by the nurse to be required. Further, the Respondents were ordered to implement the administrative controls such as isolating and cohorting as prescribed by Directives #3 and #5. 

Participating Nursing Homes v Ontario Nurses’ Association 2020 CanLII 32055 (ON LA)

The arbitration to hear all of the grievances filed by the ONA was heard on May 1, 2, and 3, 2020. The grievances mirrored the issues raised before the Court and alleged the homes breached their ‘duty of care’ owed to employees by failing to take appropriate measures in safeguarding the health of nurses in response to COVID-19. As in the court submissions, the LTC homes reiterated their compliance with the Directives and that the grievances were actually regarding the appropriate use and distribution of limited and critical medical resources.

Health Protocols at Long-Term Care Homes

The emphasis of the arbitrator’s decision was to provide guidance for the parties to move forward in working collectively to attain their shared goal of caring for the Province’s most vulnerable elderly citizens. The parties agreed the CMOH Directives were to be complied with, and agreed on various guidelines and protocols that were consistent with the Directives, OHSA, and the collective agreements. Among the agreed protocols, and consistent with the Court’s decision, it was ordered: 

• Nurses are to perform a point of care risk assessment before all resident interactions, and if they determine they require an N95 mask or other PPE, the homes will not deny access to the PPE; and
• The LTC homes are ordered to implement administrative controls such as isolating and cohorting of residents and staff to mitigate the spread of COVID-19, making all reasonable efforts to separate staff between suspected or confirmed COVID-19 residents and those who have not been infected.

Together, the Ontario Court and Arbitration decisions clarify the proper application of the CMOH Directives. More importantly, these decisions confirm the importance of safeguarding the health and safety of the frontline workers in LTC homes who continue to place themselves at risk in caring for some of society’s most vulnerable members. 

In these unprecedented times where demand for PPE might exceed its supply, the courts will not stray from directives requiring LTC facilities provide PPE as deemed necessary by nurses. Neither the lack of PPE nor a lack of space in a facility will be sufficient to excuse facilities from adhering to the Directives. 

Alberta Public Health Orders

In order to avoid being subject to similar complaints or law suits, facilities in Alberta need to diligently monitor and adhere to public health orders. Facilities with any questions or concerns about meeting their legal obligations regarding the provision of services in long-term care facilities should contact any of our Health Law lawyers.