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Bulletin | Covid-19

Canadian Health Sector: COVID-19 Update

Fasken
Reading Time 17 minute read
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Health Law Bulletin

Measures implemented over the past two weeks by governments across Canada to respond to the COVID-19 outbreak focus on safely re-opening various businesses and services, including in the health care sector, while continuing work to reduce and recover from the outbreak and support frontline workers.  Government efforts continue to be directed to supporting vulnerable populations, particularly in the long-term care sector. While governments of several provinces and territories have gradually begun easing certain restrictions on visits to long-term care homes, retirement homes and other residential care settings, restrictions remain in place.  A few provinces that had imposed supply limits on prescription medications have begun to lift those limits.

This bulletin summarizes key recent legislative changes, government orders and other significant developments affecting health care providers and organizations across Canada during the past two weeks.[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, up to April 12, 2020, up to April 19, 2020, up to April 26, 2020, up to May 3, 2020, up to May 17, 2020 and up to May 31, 2020.

Alberta

On June 4, 2020, the Government of Alberta announced that temporary amendments to Alberta's nursing homes regulations (the Nursing Homes General Regulation and the Nursing Homes Operation Regulation), which were introduced in response to COVID-19, will become permanent effective August 15, 2020.  The amended regulations allow nurse practitioners to act as primary care providers in nursing homes.

On June 5, 2020, the government announced that two biorepositories in the province have begun storing COVID-19 samples for future long-term research.  Also on June 5, 2020, the government announced that it had received a donation of 200 Alberta-designed ventilators.

Effective June 6, 2020, Alberta Health Services introduced updated COVID-19 Essential Visitor and Designated Family/Support Guidance for patients in both acute outpatient and inpatient settings.  The previous guidelines for continuing care environments were not updated.  Alberta Health Services also updated its information page

Stage 2 of Alberta's Re-Launch Strategy began on June 12, 2020. Phase 2 includes more surgeries.

The Alberta government announced that as of June 15, 2020 pharmacists can dispense larger quantities of prescription drugs, up to a 100-day supply. However, pharmacists are advised to dispense a 30-day supply when necessary for specific drugs that still have shortages or supply chain issues.

Testing is now available, and being encouraged, for everyone in Alberta.

British Columbia

On June 3, 2020, British Columbia's Minister of Citizens' Services extended a temporary ministerial order under the Freedom of Information and Protection of Privacy Act, which permits health-care workers and other public sector staff to use communication tools during the COVID-19 state of emergency.  The order, among other things, enables:

patient-care teams to follow up with patients using virtual platforms; and

people in self-isolation to communicate with public health officials using third-party tools or applications.

The order will remain in effect until December 31, 2020.  The order was first made on March 26, 2020, and was described in our earlier bulletin.

On June 8, 2020, the government issued an order amending B.C. Reg. 182/97 (the Information Sharing Agreement Prescribed Enactments Regulation) under the Medicare Protection Act. The Medicare Protection Act allows the Medical Services Commission to enter into an information-sharing agreement with Canada or a jurisdiction inside or outside Canada, or a public body under the Freedom of Information and Protection of Privacy Act.  "Information-sharing agreement" means a data-matching or other agreement to exchange personal or other information for the purpose of administering medical or health care benefits provided under prescribed enactments.  The order makes the Emergency Health Services Act a prescribed enactment.

On June 9, 2020, the government ordered that the declaration of a state of emergency be extended until June 23, 2020.

Manitoba

On June 1, 2020, Manitoba entered Phase 2 of the Restoring Safe Services plan, including lifting occupancy limits for businesses of regulated health professions.  Phase 3 is tentatively planned for June 21, 2020. 

On June 3, 2020, the Government of Manitoba announced that hospitals and health centres will be restoring visitor access for inpatients as part of Phase 2. 

Phase 2 is supported by a public health order, issued on May 29, 2020 (which took effect on June 1, 2020), described in our last bulletin.

On June 11, 2020, the government announced that the Public Health Agency of Canada and the Manitoba First Nation Pandemic Response Co-ordination Team, in partnership with the First Nations Inuit Health Branch, have deployed rapid testing machines to be used by health care providers in northern Manitoba.

Shared Health Manitoba has a number of updated resources for health care providers.

New Brunswick

On June 4, 2020, the Government of New Brunswick announced that its COVID-19 recovery plan was moving to the third level for all areas of the province (except the Campbellton region). During this phase, more restrictions are being eased. Effective June 5, 2020, elective surgeries and other non-emergency health-care services will increase, and outdoor visits for residents in long-term care facilities will be permitted with physical distancing with up to two visitors. Effective June 19, 2020, indoor visits with one visitor at a time for residents of long-term care facilities will be permitted (unless the visitor requires support, in which case, two visitors at a time will be allowed). The Campbellton region remains at the second level of the recovery plan.

On June 11, 2020, the State of Emergency mandatory order was again renewed under the authority of the Emergency Measures Act.

Newfoundland and Labrador

The Government of Newfoundland and Labrador issued an order, effective June 1, 2020, extending the province's public health emergency for a further period of 14 days.

On June 8, 2020, the province issued a Special Measures Order and entered Alert Level 3 of its COVID-19 "Alert Level System".  According to the government's announcement dated June 7, 2020, the focus of Alert Level 3 is to control the transmission of COVID-19, while further relaxing public health measures.  Among other services, private health care clinics can reopen in accordance with public health guidelines.  Virtual care options also continue to be available, and it is encouraged that virtual care be provided as much as possible.  All visitor restrictions for health care facilities throughout the province remain in place. Public health orders related to long-term care homes, personal care homes, and assisted living facilities remain in effect, but are expected to change during Alert Level 3.

On June 11, 2020, the provincial government announced an enhancement to the existing 811 HealthLine that will help improve access to primary care.  People can now schedule a virtual appointment with a nurse practitioner for urgent, non-emergency health issues via telephone, text or video.  The government stated that improving access to primary health care is a priority, as is expanding virtual care.

Northwest Territories

On June 12, 2020, the Government of the Northwest Territories announced that the territory moved to Phase Two of the Emerging Wisely plan for relaxing the COVID-19 public health restrictions.

Nova Scotia

On June 3, 2020, the Government of Nova Scotia issued a renewal of the provincial State of Emergency until June 28, 2020.

Also on June 3, 2020, an update to the order under the province's Health Protection Act was issued by the Medical Officer of Health. Effective June 5, 2020, all unregulated health care providers engaged in private practice may provide in-person or virtual care services within their scope of practice. All self-regulated health professions may provide in-person or virtual care services if they:

1. are authorized to provide this care within their scope of practice; and

2. have adopted a compliance plan in accordance with the directions established by their governing college and approved by the Chief Medical Officer of Health.

These regulated and unregulated health professionals must develop and comply with a Workplace COVID-19 Prevention Plan as a requirement of their ongoing operations.

Further, all for-profit or not-for-profit Department of Health and Wellness funded long-term care facilities licensed under the Homes for Special Care Act and all Adult Residential Centers and Regional Rehabilitation Centers funded and licensed by the Department of Community Services under the Homes for Special Care Act must comply with the "COVID-19 Management Long term Care Facilities Directive Under the Authority of the Chief Medical Officer of Health", attached to the order as Schedule A.

On June 10, 2020, the government announced the easing of some visitor restrictions in long-term care homes and homes for persons with disabilities. Effective June 15, 2020, visits can resume at long-term care facilities, provided they happen outdoors and visitors stay two metres or six feet away from residents and staff. This change also applies to homes funded by the Department of Community Services under the Homes for Special Care Act.

Nunavut

As of 5:00 pm (EST) on June 14, 2020, there have been no recent legislative changes or orders affecting the health sector in Nunavut.

Ontario

As discussed in our previous bulletin, on April 25, 2020, the Government of Ontario announced that the government would be providing frontline staff with temporary pandemic pay.  On May 29, 2020, the government issued an Order (O. Reg. 241/20) pursuant to the Emergency Management and Civil Protection Act ("EMCPA"), retroactive to April 24, 2020, which states that:

"eligible employee" means an employee who is entitled to receive temporary pandemic pay in accordance with the document entitled Eligible workplaces and workers for pandemic pay dated May 29, 2020; and

"temporary pandemic pay" means the hourly wages and lump sum payments that eligible employees are entitled to receive in accordance with the document Eligible workplaces and workers for pandemic pay dated May 29, 2020.

The Order applies to eligible employees, employers of eligible employees and employers of persons redeployed to perform work as eligible employees, and trade unions and bargaining agents that represent eligible employees.  Pursuant to the Order, no complaint alleging a contravention of the Labour Relations Act, 1995 or the Crown Employees Collective Bargaining Act, 1993 may be made in respect of the payment of temporary pandemic pay.

On May 29, 2020, the government issued an Order (O. Reg. 240/20) under the EMCPA, pursuant to which the Registrar is authorized to make a mandatory management order under subsection 91(1) of the Retirement Homes Act with respect to a retirement home where there is a risk of harm to its residents related to COVID-19, if at least one resident or staff member in the retirement home has tested positive.

On June 1, 2020, the government announced a new regulatory amendment (O. Reg. 228/20) to the Employment Standards Act ("ESA"), published May 29, 2020, that deems non-unionized employees to be on Infectious Disease Emergency Leave any time their hours of work are temporarily reduced or eliminated by their employer due to COVID-19 beyond the permitted length of time in the ESA. This amendment is intended ensure businesses are not forced to terminate employees after their ESA temporary layoff periods have expired, and to allow workers to remain employed with legal protections and be eligible for federal emergency income support programs. The amendments apply retroactively to March 1, 2020 and will expire six weeks after the declared emergency ends.  The amendments do not apply to employees who are represented by a trade union.

On June 1, 2020, the government announced that its Chief Medical Officer of Health and Associate Chief Medical Officer of Health will hold bi-weekly media briefings to provide an update on the province's ongoing response to COVID-19. Regularly scheduled media briefings will now be held every Monday and Thursday at 3 p.m.

On June 2, 2020, the government announced  new businesses that are receiving financial support through the Ontario Together Fund to re-tool their processes and increase their capacity to make personal protective equipment.

On June 2, 2020, the government announced that it is extending the provincial Declaration of Emergency to June 30, 2020, which will support the continued enforcement of emergency orders that give hospitals and long-term care homes the necessary flexibility to respond to COVID-19 and protect vulnerable populations and the public as the province reopens. The Declaration of Emergency may be further extended with the approval of the legislature.

Also on June 2, 2020, the government announced that the Ministry of Long-Term Care issued a new Mandatory Management Order for a long-term care home. On June 4, 2020, the government announced an additional order. The Ministry will continue to make decisions on a case-by-case basis.

On June 4, 2020, the government announced that it appointed a special advisor to support the design and implementation of the new Ontario Health Data Platform (formerly known as PANTHR) to provide recognized researchers and health system partners with access to anonymized health data that will allow them to better detect, plan, and respond to COVID-19. As well, this platform will support projects from the Ontario COVID-19 Rapid Research Fund. The Ontario Health Data Platform is being developed in consultation with the Information and Privacy Commissioner of Ontario. The information gathered will allow researchers to help with:

increasing detection of COVID-19;

discovering risk factors for vulnerable populations;

predicting when and where outbreaks may happen;

evaluating how preventative and treatment measures are working; and

identifying where to allocate equipment and other resources.

Researchers can begin to access the platform in July 2020.

On June 6, 2020, the government extended all emergency orders in force under the EMCPA until June 19, 2020.

On June 8, 2020, the government announced that it is will be adopting a regional approach to Stage 2 of reopening the province and indicated the public health unit regions that are permitted to move to Stage 2. Ontario government has also released over 100 health and safety guidance documents to help employers keep spaces safe.

On June 11, 2020, the government announced that it is lifting the recommended 30-day supply limit for dispensing Ontario Drug benefit program medications. In March 2020, pharmacists and physicians were asked to dispense 30-days or less of medication at a time for program recipients, subject to exceptions. This restriction was intended to prevent drug shortages during the COVID-19 outbreak. As of June 15, 2020, program recipients will be permitted to fill up to 100-days' worth of supply at a time from their pharmacy or dispensing physician. Program recipients' co-payments will return to their previous amounts.

On June 11, 2020, the government announced the appointment of Ontario's new Patient Ombudsman, responsible for supporting individuals in Ontario who have voiced concerns about their health care experience and improving the quality of care for people in hospitals, long-term care homes and through home and community care.  The Ombudsman will be overseeing an investigation into the care and health care experiences of long-term care home residents during COVID-19, which will complement the government's independent commission beginning in July 2020.

Also on June 11, 2020, the government announced the gradual resumption of visits to long-term care homes, retirement homes, and other residential care settings. As of June 18, 2020, family and friends will be permitted access to these facilities. Visitors will be subject to strict health and safety protocols, including requiring visitors to pass active screenings, confirming they have tested negatively for COVID-19 in the past two weeks, requiring visitors to wear a face covering during visits, and complying with infection prevention and control protocols. Long-term care homes will allow, at a minimum, one person to visit each resident every week for an outdoor visit.

Retirement homes visiting permissions will vary between homes and are dependent upon individual circumstances. If visitors are permitted, retirement homes will be resuming indoor and outdoor visits in designated areas or, where physical distancing can be maintained, in resident suites. Other residential care settings will be permitted to allow outdoor visits of two people at a time and include homes serving persons with developmental disabilities, shelters for survivors of gender-based violence, and children's residential settings.  Before accepting any visitors, all long-term care and retirement homes and residential care settings will be required to ensure that they are not experiencing an outbreak; they have an established process for communicating visitor protocol and the associated safety procedures in place; and they have the highest infection prevention and control standards. There will be a physical distancing requirement for all visits. Should an outbreak occur, further visiting restrictions will return.

Prince Edward Island

On May 31, 2020, Prince Edward Island's Chief Public Health Officer issued a Public Health Order revoking and replacing its previous order issued on May 21, 2020.

Effective June 1, 2020, visitation to long-term care facilities and nursing homes is permitted, provided the facility complies with the Chief Public Health Officer's Directive on Visitation to Long-Term Care Facilities and Nursing Homes.

Quebec

On June 3, 2020, the Government of Quebec issued an order renewing the public health emergency until June 10, 2020, and on June 10, 2020, the government signed an order renewing the public health emergency until June 17, 2020.

Also on June 3, 2020, the government introduced Bill 61, An Act to restart Québec's economy and to mitigate the consequences of the public health emergency declared on 13 March 2020 because of the COVID-19 pandemic.  The goal of the bill (explanatory notes) is to promote growth and acceleration measures for public infrastructure projects or projects developed by a municipality or citizen.  The bill also aims to improve Quebec's health and food sectors.  The government, or the Minister of Health and Social Services may, with regard to the measures taken under the Public Health Act, take any transitional measure to allow for a return to normality in an orderly manner once the public health emergency is terminated. 

On June 4, 2020, the Minister of Health and Social Services issued an order including that, among other things, the provisions of collective agreements in force in the health and social services network and the employment conditions that apply to non-unionized salaried personnel be amended to extend the period in which annual vacation may be taken.

On June 6, 2020, the Minister of Health and Social Services issued an additional order that lifted certain restrictions on recreational activities and, among other things, lifted restrictions on access to the Côte-Nord health region.

In our earlier bulletin, we described an order that allowed personnel of public services to be redeployed to another function or location, including into the health and social services network.  On June 12, 2020, the Minister of Health and Social Services issued an order that, among other things, built on this earlier order to amend collective agreements in order to accommodate teaching courses as part of the Health Care Facility Patient Service Support program.

Saskatchewan

On June 1, 2020, the Government of Saskatchewan announced expanded testing criteria.  Beginning on June 5, 2020, testing was made available to those being admitted to acute care for more than 24 hours, including expectant mothers and immunocompromised individuals and their health care providers.  Testing for COVID-19 was already available to anyone working outside the home, or anyone returning to work as part of the Re-Open Saskatchewan plan. 

On June 3, 2020, the government announced that the Saskatchewan Health Authority (SHA) expanded its criteria for compassionate visitations for intensive and long-term care patients. Various other updated guidelines have also been created, including to safely support outdoor visits in long-term care homes and for family visits in hospitals and long-term care homes. 

On June 4, 2020, the government announced that the Saskatchewan Temporary Wage Supplement Program is being expanded to include anyone, regardless of income level, who is working at licensed public or private long-term care facilities under public health orders restricting visitations. Workers in assisted living facilities, which also are under public health orders, who earn less than the prescribed amounts will also be eligible.

On June 9, 2020, an order was issued that extended the provincial state of emergency in Saskatchewan until June 24, 2020.

On June 13, 2020, the Chief Medical Officer of Health issued a new order to support the staged lifting of restrictions under the Re-Open Saskatchewan Plan. Among the restrictions that continue to be in place are restrictions on visitors to long-term care homes, hospitals, personal care homes and group homes (restricted to family or designates visiting for compassionate reasons); restrictions requiring staff members in a special-care and personal care home to work in only one facility; and requirements for health screenings and other protective measures in special-care, personal care and affiliate care homes, SHA facilities and certain agencies operated by the Saskatchewan Cancer Agency.

The next phase of SHA service resumption is scheduled for June 16, 2020, including increases in surgical and medical imaging volumes and the addition of services at SHA-operated specialty clinics. Re-opening of regional emergency rooms is targeted from June 12-25, 2020.

Saskatchewan has issued a series of re-opening guidelines, including the Medical Professionals Guidelines.

Yukon

On June 4, 2020, the Government of Yukon published a guidance document for clinical staff in family physician offices.

On June 11, 2020, the government published an updated guidance document on recommended practices and personal protective equipment for pharmacists and pharmacies.

On June 12, 2020, the government published an updated guidance document on recommended practices and personal protective equipment for dentists and dental clinics.

Also on June 12, 2020, the government extended the territory's state of emergency under the Civil Emergency Measures Act for another 90 days. The government also announced that outdoor visits for long-term care residents are now permitted with the release of a staged plan for the reopening of long-term care facilities in Yukon to visitors. Currently, residents can identify one visitor with whom they can visit in a pre-set outdoor location. The reintroduction of visitors is staged over four phases. Phase 2 will permit two outdoor visitors at the same time.

Federal

Effective June 1, 2020, the Federal government registered regulations that will delay the coming into force of the Regulations Amending the Patented Medicines Regulations until January 1, 2021, an extension from the previous July 1, 2020 coming into force date. The objective is to minimize the administrative burden as patented drug manufacturers face increased demands related to supply chains and shortages of existing products, and potentially new treatments and vaccines in response to COVID-19.

June 14, 2020 was World Blood Donor Day. Canada's Chief Public Health Officer's statement indicated that as planned medical procedures are resumed, there is additional demand for donations and a need to restore critical inventory levels, and explained that Canadian Blood Services and Héma-Québec have enhanced measures in place to protect donors, staff and volunteers.[2]



[1] This bulletin addresses updates published up to 5:00 pm (EST) on June 14, 2020.

[2] Thank you to articling students Marissa Di Lorenzo and Rob Legge, and to summer law students Rachel Hung, Gordon Lee, Katerina Ignatova and Montana Licari for their research assistance.

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