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Bulletin | Covid-19

Canadian Health Sector: Weekly COVID-19 Update

Fasken
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Health Law Bulletin

New measures implemented by governments across Canada to respond to the COVID-19 outbreak continue to focus on increasing capacity of the health care sector, reducing the spread of the outbreak and protecting the country's most vulnerable, including through work allocation measures for health care workers to ensure frontline services can continue to be delivered in priority areas. This bulletin summarizes select recent legislative changes, government orders and other significant developments affecting health care providers and organizations across Canada during the past week.[1]

For additional information and insights visit the Fasken Coronavirus (COVID-19) Knowledge Centre. In addition, see our previous bulletins summarizing key health sector updates across Canada in March 2020, up to April 5, 2020 and up to April 12, 2020.

Alberta

On April 10, 2020 (posted April 13, 2020), the Minister of Labour and Immigration issued an order (pdf) setting out labour and employment measures applicable to health care facilities described in the Chief Medical Officer of Health's order (pdf) requiring staff members to work only at one facility (described in last week's bulletin).

On April 17, 2020, the Minister of Health issued an order (pdf) modifying the Public Health Act to support the implementation of restrictions on the movement of staff. The Chief Medical Officer of Health, by written notice, may require an operator of a health care facility or a contractor operating within a health care facility, to disclose prescribed information in respect of staff members of the operator or contractor (including name, social insurance number, job title, hours worked, union membership and any other information that is related to the purpose of restricting the movement of staff members). The information, with the exception of social insurance numbers, may be disclosed by the Chief Medical Officer of Health to operators of health care facilities and contractors.

On April 17, 2020, the Chief Medical Officer of Health announced that her office is working to include information on all confirmed COVID-19 outbreaks on their webpage. She also explained that testing in units of continuing care facilities that are experiencing outbreaks will be expanded to include asymptomatic residents and staff.

On April 17, 2020, Alberta Health Services announced that it was taking over the operations of one of the province's continuing care facilities, Manoir du Lac.

Alberta Health Services also has a number of new resources for health professionals.

British Columbia

On April 14, 2020, the Province of British Columbia issued an order (pdf) extending the declaration of a state of emergency to April 28, 2020.

Also on April 14, 2020, the Provincial Health Officer issued the Travellers and Employers Order(pdf), addressed to, among others, employers of travellers who are essential workers and travellers who are essential workers.[2] The order amends the Provincial Health Officer's April 10, 2020 order, described in our earlier bulletin. Under the new order, employers should establish thresholds beyond which it would be difficult to deliver essential services and only allow workers who have travelled in the past 14 days to work if this threshold has been reached. The employer's decision to allow the worker to work must be based on an overall risk assessment which takes into consideration factors including where the person travelled, the duration and type of activity while away, whether the worker or any of his or her household members display symptoms of illness, and the individual's work environment.

On April 15, 2020, the Provincial Health Officer issued the Facility Staff Assignment Order (pdf) mandating coordination with respect to assignment of staff (supporting the order that they work at a single site) among regional health boards; medical health officers; licensees of long term care facilities and private hospitals; boards of management or operators of extended care hospitals; registrants of assisted living residences; contractors and sub-contractors who provide staffing for facilities; employees, contracted workers, and volunteers at facilities; education institutions which arrange placements for students at facilities; and members of working groups established pursuant to the order. The order amends the Provincial Health Officer's order of April 10, 2020 (with respect to facility staff assignment, described in our earlier bulletin) by extending it to apply to stand alone extended care hospitals but otherwise confirms that order.[3]

On April 16, 2020, the Provincial Health Officer issued an order (pdf) to all operators of personal service establishments under the Regulated Activities Regulation of the Public Health Act (including a barbershop, beauty parlour, health spa, massage parlour, tattoo shop, sauna and steam bath), and all persons who provide personal services. The order requires closure of all personal services establishments (including in-home and mobile) and prohibits the provision of personal services to any clients or customers (including in the residence of a client or customer). However, personal services restricted by the order do not include health care services provided by registrants of a college under the Health Professions Act or personal care services such as washing, dressing or feeding to a person who is unable to provide for their own personal care needs.

On April 17, 2020, the Minister of Public Safety and Solicitor General issued the Unconscionable Prices for Essential Goods and Supplies (COVID-19) Order (pdf), prohibiting unconscionable prices for essential goods and supplies, including health care goods, pharmaceuticals and medical supplies. On April 19, 2020, the Minister of Public Safety and Solicitor General announced (pdf) that police and enforcement officers now have the ability to issue $2,000 tickets for price gouging and the reselling of medical supplies and other essential goods during the pandemic. 

Manitoba

On April 16, 2020, the Chief Provincial Public Officer of Health issued the following orders, in effect until May 1, 2020:

  • the Self-Isolation Order for Persons Entering Manitoba (pdf), which requires all persons entering or arriving in Manitoba, including persons entering or arriving from other provinces and territories, to stay at their home, hotel or other residence for 14 days with exceptions for essential errands including medication if it cannot be delivered, and appointments with a health care provider for urgent or emergency care. The order does not apply to persons who are engaged in providing vital services in Manitoba, including health care providers, if they are not displaying any symptoms of COVID-19;
  • the Order Prohibiting Travel to Northern Manitoba and Remote Communities (pdf), which prohibits travel into certain areas of Manitoba. The order includes exceptions for a health care provider who is travelling into northern Manitoba or a remote community to provide health care services and for a person who is travelling into northern Manitoba or a remote community for emergency medical purposes; and
  • an order (pdf) building on, restating and extending previous orders respecting public gatherings and the mandatory closure of non-essential businesses. Facilities where health care services are provided are exempt from prohibitions on gatherings. A person who is a member of the College of Physicians and Surgeons of Manitoba, the College of Registered Nurses of Manitoba, the College of Registered Psychiatric Nurses of Manitoba, the College of Licensed Practical Nurses of Manitoba or the College of Midwives of Manitoba may practise their profession, without restriction; and any other health professional may provide services on behalf of or in support of a government or any vital service (being a business listed in the schedule to the order), and may provide urgent or emergent care. The order does not affect institutions, agencies and other service providers offering health care services such as hospitals, regional health authorities and private agencies that provide a range of health services.

On April 16, 2020, Manitoba announced expanded testing criteria to include all symptomatic workers or volunteers at workplaces that have been identified as essential services and any symptomatic person who lives with a health care worker, first responder or worker in a congregate setting such as a correctional facility, shelter, long-term care home or residential facility.

The Chief Provincial Public Health Officer and Shared Health have issued a number of memos and information for health care providers, available on Shared Health's website. They include recent memos with respect to testing in acute care, staff and/or physician exemptions from work, and clarification on what services can be provided under the Public Health Act orders.

New Brunswick

On April 14, 2020, the province-wide State of Emergency in New Brunswick was extended (pdf) until April 30, 2020.

On April 18, 2020, the Government of New Brunswick published an updated guidance document for the province's Extra-Mural Program, which is the provincial home health care program that provides health care services to residents in their homes (personal residence, special care home or nursing home).

Newfoundland and Labrador

A Special Measures Order Amendment was issued on April 14, 2020, ordering that operators of personal care homes and long-term care facilities are prohibited from permitting staff to work across multiple personal care home and long-term care facility locations, unless required in exceptional circumstances and where an exemption has been granted.

Effective April 17, 2020, the Government of Newfoundland and Labrador issued a Public Health Emergency Extension Declaration  (pdf), extending the Public Health Emergency under the Public Health Protection and Promotion Act for a third period of 14 days.

Northwest Territories

Effective April 15, 2020, the Territorial Public Health Emergency under the Northwest Territories' Public Health Act and the State of Emergency under the Emergency Management Act have been extended to April 28, 2020.

Nova Scotia

On April 13, 2020, Nova Scotia's Medical Officer of Health revised (pdf) the Health Protection Order by amending Schedule A, which contains directions for long-term care homes.

Also on April 13, 2020, the Government of Nova Scotia announced that long-term care and home care workers are required to wear masks, which will be provided by the government, effective April 14, 2020.

On April 19, 2020, the province renewed (pdf) the Provincial State of Emergency until May 3, 2020.

Nunavut

On April 15, 2020, the Minister of Health issued an order (pdf) extending the state of public health emergency for Nunavut until April 30, 2020.

As of 5:00 pm (EST) on April 19, 2020, there have been no other recent legislative changes or orders affecting the health sector in Nunavut, and the territory had announced no confirmed cases.

Ontario

On April 14, 2020, the Government of Ontario announced an extension of the Declaration of Emergency under the Emergency Management and Civil Protection Act ("EMCPA") for an additional 28 days.

New orders have been issued under EMCPA to help stop the spread of COVID-19 among the province's most vulnerable and ensure frontline services can continue to be delivered in priority areas.

As discussed in last week's bulletin, the government announced new measures intended to increase capacity in retirement homes and allow the repurposing of existing buildings and temporary structures. To support that announcement, an order (O. Reg 141/20) was issued under the EMCPA, retroactive to March 17, 2020, exempting the construction of a temporary health or residential facility, the conversion of all or part of an existing building or structure to a temporary health or residential facility and the use of a temporary health or residential facility from certain legislative requirements (including obtaining a permit or complying with O. Reg 332/12 (Building Code) under the Building Code Act, 1992, or complying with certain provisions of the Planning Act or the City of Toronto Act, 2006). The order also sets out:

  • certain conditions that must be satisfied where construction is undertaken to establish a temporary health or residential facility, before the facility or a part of the facility can be occupied; and
  • requirements for a chief building official or an inspector appointed under the Building Code Act, 1992 to undertake a proper inspection of the temporary health or residential facility to determine whether the facility is unsafe as described in that Act.

Also on April 14, 2020, an order (O. Reg 146/20) was issued under the EMCPA, pursuant to which, effective April 22, 2020, a long-term care provider (as defined in the Connecting Care Act, 2019) must ensure that any employee who performs work in a long-term care home (under the Long-Term Care Homes Act, 2007 (the "LTCHA")) it operates or maintains is not also performing work, (a) in another long-term care home operated or maintained by the long-term care provider; (b) as an employee of any other health service provider (as defined in the Connecting Care Act, 2019); or (c) as an employee of a retirement home (as defined in the Retirement Homes Act, 2010 ("RHA")).

Two notable orders were issued on April 16, 2020 under the EMCPA. The first order (O. Reg 158/20), effective April 22, 2020, requires any licensee under the RHA ("Licensee") to ensure that any employee in a retirement home it operates is not also performing work, (a) in another retirement home, including another retirement home operated by the Licensee, or (b) as an employee of a health service provider. Both O. Reg 146/20 and O. Reg 158/20 require a long-term care provider and Licensee, respectively, to ensure that a copy of the applicable order is posted in the long-term care home or retirement home in a conspicuous and easily accessible location in a manner that complies with the regulations under the LTCHA or RHA, as applicable. 

The second order (O. Reg 156/20) authorizes local health integration networks ("LHINs") to request that a contracted service provider organization[4] provide health care and related social services, other than community services within the meaning of the Home Care and Community Services Act, 1994, in a setting identified by the LHIN, and the LHIN is also authorized to fund those services. This order provides LHINs with the ability to direct home care service provider organizations to safely reassign frontline staff to areas where they are most needed, including home and community care settings, long-term care homes, supportive housing, retirement homes and hospitals.

In addition to emergency orders issued under the EMCPA, the government has made a number of announcements over the past week in response to the outbreak of COVID-19, which include those described below.

On April 15, 2020, the government announced an action plan related to long-term care homes. The COVID-19 Action Plan: Long-Term Care Homes adds new measures to prevent outbreaks of COVID-19 in long-term care homes, including the following:

  • aggressive testing, screening and surveillance - enhancing testing for symptomatic residents and staff and those who have been in contact with persons confirmed to have COVID-19; expanding screening to include more asymptomatic contacts of confirmed cases; and leveraging surveillance tools to enable care providers to move proactively against the disease;
  • managing outbreaks and spread of the disease - supporting long-term care homes with public health and infection control expertise to contain and prevent outbreaks; and providing additional training and support for current staff working in outbreak conditions; and
  • growing the long-term care workforce - redeploying staff from hospitals and home and community care to support the long-term care home workforce and respond to outbreaks, alongside intensive on-going recruitment initiatives.

The government announced that within less than 48 hours from the announcement of the action plan, it would act to deliver the following services:

  • enhanced testing and surveillance for symptomatic residents and staff and those in contact with persons confirmed to have COVID-19;
  • testing of asymptomatic residents and staff in select homes across the province to better understand how COVID-19 is spreading;
  • risk and capacity assessments for all homes;
  • working with Ontario Health, the Ontario Hospital Association, and public health units to assemble infection control and preventions teams and additional supports;
  • enhanced guidance on personal protective equipment and continued priority distribution to homes;
  • enhanced training and education to support staff working in outbreak situations; and
  • redeploying hospital and home care resources into homes.

On April 16, 2020, the government announced that it significantly expanded hospital capacity in the province by adding 1,035 acute care beds and 1,492 critical care beds. Further, the government has taken steps to ensure that hospitals have staff available for a sudden surge in patients. Ontario now has 20,354 acute care beds with a potential for an additional 4,205 more by April 30, 2020. Of Ontario's 3,504 critical care beds, 2,811 are now equipped with ventilators which is up from 1,319 when the outbreak started. This capacity expansion has been organized in coordination with pandemic staffing plans to ensure each hospital has the physicians and staff needed, including in case of a major surge of COVID-19 cases. Measures include:

  • redeploying surgical nursing staff who can now work with medicine units;
  • sharing highly trained emergency department and intensive care unit nursing staffs across units;
  • sharing physician resources across hospitals in a given region;
  • recruiting family doctors to complete shifts within the hospital; and
  • recruiting retirees, including nursing and support services.

Additionally, Ontario has introduced new legislative and regulatory changes in response to the outbreak of COVID-19:

Supply Chain Management Act (Government, Broader Public Sector and Health Sector Entities), 2019

The Supply Chain Management Act (Government, Broader Public Sector and Health Sector Entities), 2019 ("SCMA") came into force on March 27, 2020. As mentioned in our earlier bulletinO. Reg 92/20 was filed under the SCMA on March 17, 2020, designating the Ministry of Health as the supply chain management entity in respect of health sector entities (e.g. hospitals and corporations controlled by hospitals that exist solely or primarily for the purpose of purchasing goods or services for hospitals) for the purpose of responding to COVID-19 and any issues related to the response to and recovery from COVID-19.

Ambulance Act

On April 16, 2020, O. Reg 159/20 was filed, amending certain requirements under O. Reg. 257/00 under the Ambulance Act to allow more individuals to qualify to provide services during a declared state of emergency. Specifically, the regulation allows operators of land ambulance services to employ or engage, or continue to employ or engage, certain individuals who do not meet the prescribed requirements, but who have successfully completed certain prescribed programs, in order to provide patient care. The new regulation also relaxes the 12-month re-certification requirement and amends other sections relating to students registered in paramedic programs and examinations during a declared state of emergency.

Prince Edward Island

On April 17, 2020, the Government of Prince Edward Island issued an order renewing the state of public health emergency under the Public Health Act until April 30, 2020.

Quebec

On April 15, 2020, the Government of Quebec made an order (pdf) extending the declaration of a public health emergency to April 24, 2020. The order extends previously adopted orders to the same date or until the Government or the Minister of Health and Social Services modifies or terminates them.

Also on April 15, 2020, the Minister of Health and Social Services issued an order (pdf) that:

  • permits, in addition to the visits permitted by the March 23, 2020 order (pdf) summarized in our earlier bulletin, visits from a family caregiver to residents in residential and long-term care centers if:
    • the resident was receiving support from the family caregiver before March 13, 2020, and that support is still necessary;
    • the caregiver understands the risks, undertakes to respect the directives given by the institution and the public health authorities, and receives a negative COVID-19 screening before the first visit and shows no COVID-19-related symptoms; and
    • the director of public health for the region in which the institution is situated has not ordered the visits suspended to protect the health of the population;
  • allows certain professional orders (regulatory colleges) to authorize temporary practise of their profession by students registered in a program leading to a diploma giving access to the professional orders. A student being issued the special public health emergency student authorization must have only one full-time semester left. This applies to the following professional orders:
    • the Ordre des infirmières et infirmiers du Québec (nurses);
    • the Ordre professionnel des inhalothérapeutes du Québec (respiratory therapists);
    • the Ordre professionnel des technologistes médicaux du Québec (medical technologists);
    • the Ordre des technologues en imagerie médicale, en radio-oncologie et en électrophysiologie médicale du Québec (only for medical imaging technologists in radiodiagnostics and medical imaging technologists in nuclear medicine); and
    • the Ordre des travailleurs sociaux et des thérapeutes conjugaux et familiaux du Québec (only for social workers);
  • permits the Ordre des infirmières et infirmiers auxiliaires du Québec (licensed practical nurses) to issue a special public health emergency student authorization to a person registered in the program of studies leading to a diploma, on the condition that the person has acquired a minimum level of proficiency;
  • permits a professional order in the health field to grant a person less than 70 years of age who has not been a member of the order for less than 5 years or is registered as a non-practising member or a member of a similar class, a special public health emergency authorization; and
  • permits the Collège des médecins to grant a special public health emergency practice authorization, on different conditions.

The Premier of Quebec also called on doctors and the military to help fight the pandemic in the province's long-term care facilities.

On April 17, 2020, the Minister of Health and Social Services adopted an order (pdf) adding employees working in home care support services to the list of employees that will receive an 8% bonus pursuant to an order issued on April 4, 2020, and described in our previous bulletin.

Saskatchewan

On April 14, 2020, the Saskatchewan Health Authority announced new screening and masking requirements for health care providers.

On April 17, 2020, the Chief Medical Officer of Health issued an order (pdf), including new measures and extending and restating previous measures. The April 17 order replaces the Chief Medical Officer of Health's order issued on April 4, 2020, described in our previous bulletin. The order includes:

  • that as of April 28, 2020, special-care homes under The Provincial Health Authority Act and personal care homes under The Personal Care Homes Act must ensure that each staff member (including employees, contractors, students and volunteers)[5] works in only one facility, unless an exception is granted by a medical health officer. Staff members are also restricted from working at a special-care or personal care home if they also work at a hospital;
  • all staff members and individuals (other than individuals receiving care) in special-care, personal care and affiliate care homes and certain agencies operated by the Saskatchewan Cancer Agency must undergo a health screening prior to entering the facility, including a temperature check, and must be denied entry if they display or disclose signs or symptoms of Covid-19;
  • at all times while on shift, all staff members in special-care, personal care and affiliate care homes and certain agencies operated by the Saskatchewan Cancer Agency must wear, at a minimum, a procedural/surgical mask if they are involved in direct patient care or if entry into patient care areas is required and physical distancing cannot be maintained. Additional personal protective equipment may be required to perform care or procedures; and
  • visitor restrictions remain in effect - visitors to long-term care homes, hospitals, personal care homes, and group homes are restricted to family or designates visiting for compassionate reasons. All visitors must undergo a health screening prior to entry. Any visitors who display or disclose signs or symptoms of COVID-19 will be denied entry to the facility. An updated standard (pdf) on visitor restrictions in continuing care was also published on April 16, 2020 and an update on visitor restrictions in Saskatchewan Health Authority facilities was posted on April 15, 2020.

On April 19, 2020, updated health care workforce screening principles and tools were posted on the Government of Saskatchewan website (see "Daily Fitness for Work Screening").

A number of resources are available for Saskatchewan health care providers and regularly updated, including clinical practice resources and testing, screening, treatment and medical directives.

Yukon

On April 17, 2020, the Minister of Community Services issued an order  (pdf) restricting entry to the territory. The order provides for certain exceptions, including for a person entering to provide health care services or to deliver medical supplies, as described in the Directions and Guidelines for the Delivery of Critical, Essential and Other Services.

Federal

On April 15, 2020, the Prime Minister announced (pdf) financial support for essential workers. In recognition that essential workers' salaries may be less or similar than what they would receive from the Canada Emergency Response Benefit ("CERB"), the government will work with provinces and territories to cost-share a temporary top-up to the salaries of essential workers who make less than $2,500 a month, including those in hospitals and nursing homes.

On April 17, 2020, the Office of the Privacy Commissioner of Canada announced (pdf) that it had published an assessment framework for government institutions, intended to guide the development of privacy initiatives in light of the current situation, recognizing that the health crisis created by the pandemic calls for a more flexible application of privacy laws. The framework is intended to compliment guidance (pdf) issued in March to departments and organizations subject to federal privacy laws to understand their privacy-related obligations during the COVID-19 outbreak.


Thank you to articling students Andrew Gunpat, Anna Lu, Jessica Nolan, Lina Bensaidane, Marissa Di Lorenzo, Rachel Kardal and Rob Legge for their research assistance.


[1]       This bulletin addresses updates published up to 5:00 pm (EST) on April 19, 2020.

[2]       An essential worker for the purpose of the Travellers and Employers Order is a person who provides services that are considered critical to preserving life, health, public safety and basic societal functioning and who has been determined by the leadership of their organization, on an individual basis, to be critical to delivering essential services according to principles set out in the order.

[3]       The Facility Staff Assignment Order does not apply to dieticians, medical laboratory technologists, medical laboratory assistants, nurse practitioners, paramedics, pharmacists, physicians, resident physicians, speech language pathologists, inter-facility transport staff, delivery persons, trades people, regular and biochemical waste removal people, biomedical engineers, visitors or any other person or class of person who are exempted by the medical health officer.

[4]       "Contracted service provider organization" means, with respect to a LHIN, a person who provides homemaking services, personal support services or professional services within the meaning of the Home Care and Community Services Act, 1994 purchased by the LHIN.

[5]       The order restricting staff members from working at more than one facility in Saskatchewan does not apply to dieticians, medical laboratory technologists, medical laboratory assistants, nurse practitioners, home care workers, public health nurses, paramedics, pharmacists, physicians, resident physicians, speech language pathologists, staff who provide podiatry type care, inter-facility transport staff, delivery persons, trades people, regular and biochemical waste removal people, biomedical engineers, visitors or any other person or class of person who are exempted by the medical health officer.

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