On April 9, 2021, the Ontario government made two new regulations under the Emergency Management and Civil Protection Act[1] (the “EMCPA”): the Transfer of Hospital Patients Regulation[2] (the “Transfer Regulation”) and the Work Redeployment for Local Health Integration Networks and Ontario Health Regulation[3] (the “Work Redeployment Regulation”). Both regulations aim to ensure that hospitals have the resources and capacity necessary to provide patient care during the COVID-19 pandemic.
Declaration of Emergency
On April 7, 2021, the provincial government declared an emergency in the Province of Ontario under the EMCPA.[4] During a declared emergency, the Lieutenant Governor is empowered by the EMCPA to make orders to promote the public good by protecting the health, safety and welfare of the people of Ontario.[5] Both the Transfer Regulation and the Work Redeployment Regulation were enacted by order of the Lieutenant Governor.
Transfer of Hospital Patients
The Transfer Regulation is intended to address “major surge events”, meaning an increase in demand for critical care resources of hospitals that is attributable to COVID-19 and which is overwhelming, or imminently threatens to overwhelm, hospitals’ critical care resources.[6]
The Transfer Regulation authorizes hospitals to transfer a patient to an alternate hospital site, and authorizes the receiving hospital to admit that patient, whether or not the patient or their substitute decision-maker has consented to the transfer.[7] An “alternate hospital site” is either a different location or site of the same hospital or a different hospital, as hospital is defined in the Connecting Care Act.[8] This includes public and private hospitals and psychiatric facilities, but excludes other care facilities such as long-term care homes.
Four conditions must be met in order for the transfer to be permitted:[9]
- The transfer must be necessary to
- respond to a major surge event,
- enable the hospital to optimize the availability of its critical care and acute care resources, or assist another hospital in optimizing the availability of such resources, and
- reduce a foreseeable risk of serious bodily harm to a person;
- Reasonable efforts must have been made to obtain consent to the transfer from the patient or their substitute decision-maker;
- The attending physician must be satisfied that the patient can receive the required care at the alternate hospital site and that the transfer will not compromise the patient’s medical condition; and
- Where the proposed transfer is to a different hospital, a member of the medical, extended class nursing, dental or midwifery staff at the receiving hospital must be prepared to admit the patient.
Hospitals should maintain appropriate documentation to confirm that, prior to transferring a patient, each of these four conditions were met.
To facilitate the provision of care to the patient being transferred, the transferring hospital is authorized to disclose any necessary information, including personal health information, to the receiving hospital.[10]
Transfers effected under the Transfer Regulation are not permanent. As soon as possible following the conclusion of the major surge event, the alternate hospital must make reasonable efforts to transfer the patient back to the original hospital site, or to another suitable location which is consented to by the patient or their substitute decision-maker.[11]
Work Redeployment for Local Health Integration Networks and Ontario Health
Under the Work Redeployment Regulation, Home and Community Care Support Service (“HCCSS”) organizations (previously part of local health integration networks)[12], are authorized to take reasonably necessary measures, with respect to work redeployment and staffing, to respond to, prevent and alleviate the outbreak of COVID-19.[13] Ontario Health and HCCSS organizations are also authorized to redeploy staff to assist hospitals in responding to COVID-19 outbreaks.[14]
Such measures may include any of the following:[15]
- redeploying staff from one HCCSS organization to another;
- redeploying staff to provide assistance within a hospital;
- 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;
- employing extra part-time or temporary staff or contractors, including for the purposes of performing bargaining unit work; or
- providing appropriate staff training or education to achieve the purposes of a redeployment plan.
Ontario Health and HCCSS organizations can develop, modify, and implement staffing redeployment plans without complying with the provisions of a collective agreement. Further, any grievance process with respect to measures taken under the Work Redeployment Regulation is suspended for the period that the regulation remains in force.[16] Staff who are temporarily deployed to another organization or hospital remain the staff of the deploying organization, and both organizations will not be seen as constituting a single employer for the purposes of the Labour Relations Act.[17]
In order to implement redeployment plans, Ontario Health and HCCSS organizations are given the authority to collect information from staff about their work skills and availability. They may also require that staff provide information about their likely or actual exposure to COVID-19 or other health conditions that may affect their ability to work.[18]
Looking Forward
Both the Transfer Regulation and the Work Redeployment Regulation are temporary measures, and are set to expire by default after 14 days, on April 23, 2021, unless terminated sooner in accordance with the EMCPA.[19] However, for as long as the emergency declaration remains in effect, the two regulations may be extended by further 14-day periods if extensions are necessary to deal with the effects of the emergency.[20]
[1] Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9.
[2] O. Reg. 272/21: Transfer Of Hospital Patients.
[3] O. Reg. 271/21: Work Redeployment For Local Health Integration Networks And Ontario Health.
[4] O. Reg. 264/21: Declaration Of Emergency.
[5] EMCPA, section 7.0.2(1).
[6] Transfer Regulation, Schedule 1, section 1.
[7] Ibid, section 2(1).
[8] Ibid, section 1.
[9] Ibid, section 2(2).
[10] Ibid, section 3.
[11] Ibid, section 4.
[12] Facts about Home and Community Care Support Services, Ministry of Health.
[13] Work Deployment Regulation, Schedule 1, section 2(1).
[14] Ibid, section 2(2).
[15] Ibid, section 3(1).
[16] Ibid, section 3(2).
[17] Ibid, section 4.
[18] Ibid, section 3(2).
[19] EMCPA, section 7.0.8(1).
[20] EMCPA, section 7.0.8(3).
