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Arbitrator Provides Further Guidance to LTC Homes on Use of PPE

Last week we blogged about the extraordinary decision of the Ontario Superior Court to grant an injunction to the Ontario Nurses’ Association (“ONA”) which, among other requirements, mandated that nurses at the identified long-term care (“LTC”) homes be fitted with N-95 masks. Justice Morgan pointed to the “slow and protracted” nature of the arbitral process as a key factor in the court exercising its discretion to step into the role of expert labour adjudicator. And yet, just over one week later Arbitrator John Stout rendered a “bottom line decision” to provide the parties with much needed guidance about the provision and conservation of vital personal protective equipment (“PPE”), including N-95 masks.

Arbitrator Stout’s decision addressed a number of ONA grievances against LTC homes alleging, in part, the violation of their collective agreements, the Occupational Health and Safety Act (the “OHSA”), and section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”). ONA asserts that the LTC homes failed to take adequate measures to ensure the safety of employees, failed to provide adequate PPE, failed to allow employees to self-isolate when warranted, failed to follow the “precautionary principle,” and failed to take every precaution reasonable in the circumstances arising as a result of the threat posed by the COVID-19 pandemic.  The LTC homes asserted that the grievances were really about the appropriate use and allocation of scarce medical resources including PPE.  Arbitrator Stout recognized that both sides had raised legitimate concerns.

In response to the COVID-19 pandemic, the Chief Medical Officer of Health (“CMOH”) issued a number of directive in accordance with section 77.7 of the Health Protection and Promotion Act (“HPPA”). Directive #5, directed at all public hospitals and LTC homes, outlines required precautions and procedures related to PPE when dealing with suspected, presumed, or confirmed COVID-19 patients or residents. Many of the union’s concerns in this case are related to the LTC homes’ compliance, or alleged lack thereof, with Directive #5.

In his decision, Arbitrator Stout rightly notes that it would “serve no useful labour relations purpose to assign any blame or make hasty judgement,” emphasizing that all parties involved are united in the common goal of “working jointly in their struggle to…protect our valuable healthcare workers and the Homes’ vulnerable residents.” Demonstrating this common goal is the agreement by all parties, including Arbitrator Stout, that the CMOH’s Directives must be followed in the LTC homes.

Arbitrator Stout held that the LTC homes have the right to implement their own policies, procedures and protocols, and run their operations as they see fit, so long as they do so in a manner consistent with their legal obligations, including compliance with the CMOH Directives.  He noted that the respondent LTC homes had already adopted and agreed to implement a new COVID-19 Measures protocol to ensure the safety of employees including a number of measures related to PPE.

Further to these agreed upon points, Arbitrator Stout issued a series of orders related to PPE, including:

• Nurses must perform a point of care risk assessment (“PCRA”) before all resident interactions.
• If a nurse determines based on the PCRA, and based on their professional and clinical judgement, exercised reasonably, that they require fitted N-95 respirators and other appropriate PPE (gloves, gowns and face shields), the LTC homes will not deny access to such available PPE.
• Management in LTC homes reserve their rights under applicable collective agreements to manage performance in appropriate circumstances, or to discipline for just cause, in relation to the PCRA and nurses have the right to grieve same.
• All parties must engage in the conservation and stewardship of PPE.
• Fitted N-95s must be worn whenever aerosol generating medical procedures are performed, are frequent or are probable.
• LTC homes are to pursue all proper avenues to procure sufficient supply of all PPE, including but not limited to N95s and equivalent or greater protection to meet current and projected usage rates, and will share their efforts with the JHSC.

Importantly, Arbitrator Stout confirms throughout his decision that requests for PPE such as the globally scarce N-95 masks must take into account short and long term needs and consider available supply. This balanced approach recognizes that when it comes to ensuring workplace safety in the face of COVID-19, all parties, not just management, have an important role to play and responsibilities to fulfill.