New Healthcare Legislation
Ontario Introduces Bill 231, the More Convenient Care Act, 2024
On December 2, 2024, the Province of Ontario introduced Bill 231, the More Convenient Care Act, 2024. Bill 231 proposes changes to a variety of laws in the healthcare sector. Most notably, the Bill proposes to enact a new piece of legislation, the Health Care Staffing Agency Reporting Act, 2024. If enacted, this law would have a significant impact on healthcare employers and staffing agencies. The key components of this proposed law are detailed below.
Key Aspects of the Proposed Legislation
If passed, the Health Care Staffing Agency Reporting Act, 2024 would introduce the following:
- New defined terms: The Act would introduce definitions for “health care facility staffing agency” and “health care facility.” The former would mean “a temporary help agency, within the meaning of the Employment Standards Act, 2000, that assigns any prescribed persons to perform work in or for a health care facility,” and the latter would mean “a public hospital, the University of Ottawa Heart Institute / Institut de cardiologie de l’Université d’Ottawa, a long-term care home or any other prescribed facility or prescribed provider.”
- Mandatory reporting requirements: Health care facility staffing agencies would be required to submit detailed reports to the Minister of Health at least once every six months. These reports would need to include “the prescribed” (i.e. to be set out in the related regulations) information on “aggregate administrative, billing or pay rate information” for the facilities to which the agency assigns workers.
- Record maintenance obligations: Health care facility staffing agencies would be required to maintain: (1) “a true copy” of any contract to assign “prescribed employees to a health care facility” for a period of three years from the date of contract expiry; and (2) “a true copy” of any invoice relating to “prescribed administrative, billing or pay rate information” for a period of three years from the date the invoice was issued. These requirements will only apply to contracts made or amended or modified, or invoices issued, after the date upon which these changes come into effect (i.e. there will be no retroactive application).
- Penalties for non-compliance: Non-compliance with the Act or its regulations could result in fines of up to $10,000 for individuals and $25,000 for corporations.
Bill 231 passed second reading on December 5, 2024, and is now before the Standing Committee on Social Policy for review.
We will continue to monitor and provide updates on this topic.
Recent Healthcare Decisions
Balancing Workplace Safety Policies with Employee Rights and Mitigating Factors
1. Trillium Health Partners v Canadian Union of Public Employees, and its Local 5180, 2024 CanLII 116816 (ON LA) (Randazzo, November 25, 2024)
This case involved an employee (the “Grievor”) who had received a written warning and discipline (a suspension), and who was eventually discharged, for non-compliance with the employer’s (the “Hospital”) COVID-19 Vaccination Policy.
The Union claimed that the Hospital had violated the Ontario Human Rights Code (the “Code”) and had failed to accommodate the Grievor’s request for a medical exemption from the policy and, specifically, for an extension of time to comply with the policy. The Union also alleged that the Hospital had violated its own policy by applying the exemptions component of the policy in an overly strict manner, and that the Hospital had breached the Collective Agreement by disciplining and terminating the Grievor in the circumstances.
The Hospital denied the Union’s allegations and took the position that the policy had been applied fairly and consistently vis-a-vis all employees, including the Grievor in this case.
The arbitrator made the following key findings in favour of the Hospital:
- The Hospital had applied the policy in a fair and consistent manner, acknowledging the critical need for safety in healthcare settings.
- The Grievor had not cooperated in the accommodation process, as they chose not to produce a medical report that would have been relevant to their request for a medical exemption under the policy. This deprived the Hospital of the opportunity to conduct a complete review of the necessary and relevant information with respect to the Grievor’s accommodation request.
- The Hospital did not violate the Code.
The arbitrator upheld a fourteen-day suspension for non-compliance with the policy but ultimately concluded that there was no just cause for discharge. The arbitrator found that the Grievor was following her doctor’s advice and had demonstrated a willingness (albeit a delayed one) to comply with the policy. As a result, the termination was replaced with a lengthy unpaid suspension, but no order for reinstatement was made. The issue of remedy was referred back to the parties.
The Importance of Precision in Non-Pyramiding Clauses
2. Canadian Union of Public Employees, Local 5441 v Unity Health Toronto, 2024 CanLII 114136 (ON LA) (Kugler, November 15, 2024)
The arbitrator examined a dispute regarding the proper application and interpretation of a non-pyramiding clause in a collective agreement. The primary issue was whether employees could receive overlapping payments, specifically overtime premiums combined with shift/weekend premiums, as well as holiday pay combined with shift/weekend premiums.
The relevant collective agreement provisions provided as follows:
ARTICLE 15 – PREMIUM PAYMENT
…
15.03 Overtime Premium and No Pyramiding
Subject to any superior conditions, the overtime rate shall be time and one-half (1-½) the employee’s straight-time hourly rate. Where an employee is required to work additional overtime contiguous to an overtime shift within a twenty-four (24) hour period, the employee will be compensated at the rate of double time his or her straight time hourly rate for all additional contiguous overtime hours worked.
Overtime premium will not be duplicated nor pyramided nor shall other premiums be duplicated nor pyramided nor shall the same hours worked be counted as part of the normal work week and also as hours for which the overtime premium is paid.
…
15.09 Shift and Weekend Premium
Employees shall be paid a shift premium of one dollar and twenty cents ($1.20) per hour for all hours worked where the majority of their scheduled hours fall between 1500 and 0700 hours.
The same one dollar and twenty cents ($1.20) per hour will be paid as weekend premium for all hours worked between 2400 hours Friday and 2400 hours Sunday, or such other 48-hour period as may be agreed upon by the local parties.
ARTICLE 16 – HOLIDAYS
…
16.03 A) Payment for Working on a Holiday
(The following clause is applicable to full-time employees only)
If an employee is required to work on any of the holidays set out in the Local Appendix – Article K.1 the employee shall be paid at the rate of time and one-half (1-½) her regular straight time hourly rate of pay for all hours worked on such holiday subject to Article 16.04. In addition, if the employee qualifies in accordance with Article 16.02 above the employee will receive a lieu day off with pay in the amount of the employee’s regular straight time hourly rate of pay times the employee’s normal daily hours of work.
Other provisions if any, relating to the scheduling of lieu days or relating to the payment of holiday pay instead of receiving a lieu day off are located in the Local Provisions Appendix – Article K.3.
16.03 B) Payment for Working on a Holiday
(The following clause is applicable to part-time employees only)
The holidays listed in the part-time Local Appendix – Article K.1 for the purposes of Article 16.03(b) shall be the same holidays as are listed in the full-time Local Provisions Appendix.
If an employee is required to work on any of the holidays set out in the Local Appendix – Article K.1 the employee shall be paid at the rate of time and one-half (1-½) her regular straight time hourly rate of pay for all hours worked on such holiday.
16.04 Payment for Working Overtime on a Holiday
Where an employee is required to work authorized overtime in excess of his regularly scheduled hours on a paid holiday, such employee shall receive twice (2x) his regular straight time hourly rate for such authorized overtime.
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R.1 Paid Time to Working Time
Time paid by the Hospital for bereavement leave, sickness, paid holidays, paid vacations, absences paid by the Workplace Safety Insurance Board is to be recognized as time worked for the purpose of calculation of overtime during the work schedule in which the absence occurred. No pyramiding shall result from application of this provision. The foregoing shall also apply in cases of short term leaves of absence for Union business approved by the Hospital under the applicable provision of the Collective Agreement where payment is made to the employee by the Union.
…
The arbitrator considered the above provisions and made two critical findings on the application and interpretation of the collective agreement:
- Employees could not receive both overtime premiums and shift/weekend premiums for the same hours worked.
- Employees could receive both holiday pay and shift/weekend premiums for the same hours worked.
This decision highlights the nuanced application of non-pyramiding clauses and demonstrates how the specific wording of these clauses can significantly influence the interpretation of compensation entitlements.
Unilateral Changes to a Long-Standing Scheduling Agreement Deemed Invalid
3. Muskoka Algonquin Healthcare v ONA, 2024 CanLII 109301 (ON LA) (Johnston, November 4, 2024)
This case involved a dispute between the Hospital and the Union regarding scheduling changes that impacted Registered Nurses who worked in the Emergency Departments at both of the Hospital’s two locations. The Hospital and the Union were both parties to a longstanding “Master Rotation” schedule for the sites that set out the individual RN’s schedules and lines.
The Hospital had recently experienced some staffing changes, which led to an imbalance in both Emergency Departments in terms of the experience of the RN teams working there. The Hospital identified the need to correct the imbalance in the skill and mix of the units. It did so by unilaterally changing the schedules and lines of RNs who were subject to the Master Rotation schedule, some of whom had elevated rights about these matters due to seniority, without properly consulting or communicating with them or the Union about the changes, as required by their collective agreement.
The Union did not challenge the legitimacy of the Hospital’s concerns regarding the need to rebalance the skill and mix of the units. However, the Union did take the position that the Hospital had no authority to unilaterally change the Master Rotation schedule without following the procedures set out in the collective agreement. These procedures included a duty to consult with the Union before making any such changes, which the Hospital did not do in this case.
The Arbitrator found in favour of the Union and upheld the grievance, finding that the Hospital had violated the collective agreement by bypassing the contractual consultation process before unilaterally making changes to the Master Rotation schedule.
When Workplace Reprisal Claims Fall Short: Lessons from a Recent OHSA Decision
4. Corey Neumeister v St. Mary’s General Hospital Inc, 2024 CanLII 119417 (ON LRB) (Black, November 7, 2024)
This decision arose from an application under section 50 of the Occupational Health and Safety Act (OHSA). The applicant, an employee of the Hospital, alleged four instances of workplace reprisals between October 2022 and March 2023, including harassment, privacy breaches, and retaliation in respect of the employee’s role as a co-chair of the Hospital’s Joint Health and Safety Committee (JHSC).
The Board considered the application and determined that the applicant’s submission lacked the material facts necessary to establish a prima facie case of reprisal under section 50 of the OHSA. The Board emphasized that it is the responsibility of the applicant in cases such as these to clearly demonstrate a nexus between a protected activity (e.g., enforcing OHSA rights) and adverse actions by the employer (e.g., dismissal, discipline, or intimidation).
The Board provided as follows in this regard:
17. As noted, the applicant indicates that he was co-chair of the JHSC at the Hospital, and in this role, he reported any number of workplace issues to management of the hospital. This could, on its face, be protected activity, but it is not particularized at all, such that there is no way to determine whether there could be a plausible basis for drawing a reasonable inference of a nexus between the protected activity as co-chair of the JHSC and any reprisal. Further, there are no specific actions of the Hospital that are said to constitute a reprisal.
…
19. The Board should not have to piece together the material facts upon which the applicant relies in support of the application. To do so would require an analysis of the application, all of the documents filed with the application and thereafter, the responses filed by the responding parties and by the applicant with respect to those responses, and to engage in a certain amount of guesswork. The Board declines to do so. It is up to the applicant to state his case in a manner which is comprehensible to the Board.
In other words, the burden was on the applicant to explain to the Board how there had been a workplace reprisal contrary to the OHSA in this case; it was not the Board’s job to piece together the materials or engage in any guesswork.
The Board upheld the Hospital’s preliminary objection that the application failed to establish a prima facie case because it did not contain the elements required to establish a violation of section 50 of the OHA. The Board dismissed the application on this basis.
Grievances Deemed Timely Despite Longstanding Role Exclusion
5. North York General Hospital v Ontario Nurses’ Association, 2024 CanLII 122374 (ON LA) (Johnston, December 4, 2024)
This case addressed a preliminary objection raised by the Hospital regarding the timeliness of grievances filed by the Union. The underlying subject matter of the dispute was whether the “Coordinator” role, also called “Cancer Care Coordinator,” should be included in the Union’s bargaining unit. This role had been excluded from the bargaining unit for 16 years.
The “Coordinator” classification was introduced by the Hospital in 2004 across various departments. It was initially a non-clinical position found via an earlier arbitration decision to be outside the bargaining unit. Over time, a subset of this role evolved at the Hospital’s off-site cancer clinics that included clinical duties (i.e., the Cancer Care Coordinators). Despite this shift, the scope of the bargaining unit was not adjusted to reflect the change in the role’s responsibilities.
Upon discovering that the Coordinator positions at the cancer clinics involved clinical duties, the Union filed grievances challenging their continued exclusion from the bargaining unit. In response, the Hospital objected, arguing that the grievances were untimely due to the significant delay since the classification’s initial exclusion. In other words, the Union had “slept on its bargaining rights.”
The arbitrator considered the detailed facts presented by the Union in this case and, based on these facts, ruled that the grievances were timely, as the arbitrator was satisfied that the grievances were filed promptly after the Union became aware of new and relevant information about the positions’ duties. This ruling was limited to the issue of timeliness, and a decision on the merits (i.e., whether the roles should be included in the bargaining unit) remains pending.
Arbitration Clarifies Scope of Quarantine Pay Under Collective Agreement
6. North York General Hospital v ONA, 2024 CanLII 119339 (ON LA) (Kaplan, October 10, 2024)
This arbitration examined the application of a newly implemented provision in a collective agreement, which provided quarantine pay to nurses required to isolate under hospital policy, legal mandate, or public health directives (i.e., quarantine pay). The grievor was a regular part-time nurse who had tested positive for COVID-19 and was instructed by the Hospital to remain at home until her symptoms subsided. The nurse asserted that this direction triggered her entitlement to quarantine pay under the terms of the collective agreement.
The provision at issue provided as follows:
The Collective Agreement
Article 6.05(f) states:
Effective July 20, 2023, employees who are absent from work due to a communicable disease and required to quarantine or isolate due to:
i) The employer’s policy, and/or
ii) Operation of law and/or
iii) Direction of public health officials,
shall be entitled to salary continuation for the duration of the quarantine.
The arbitrator dismissed the grievance, determining that the Hospital’s instruction to the nurse to stay home for recovery purposes due to a COVID-19 diagnosis did not constitute a formal requirement to quarantine or isolate as stipulated by the hospital’s policy, law, or public health authority. In this regard, the arbitrator provided as follows:
In this case, the grievor was not required by the Hospital’s policy to quarantine/isolate. The grievor was instructed to stay at home until her symptoms abated, which she did. Instructing a sick person to stay at home until they get better is not tantamount to requiring them to quarantine/isolate. Employees with COVID-19 who worked at SHS were, on the other hand, required to self-isolate…
If the grievor had worked at the SHC, then it is quite clear that that there was an applicable Hospital policy requiring employees to self-isolate, thereby meeting one of the applicable preconditions for entitlement to quarantine/isolation pay. Employees following this policy would, it appears, have been entitled to the benefit of the provision. But that is not this case. The parties are free to argue about this in the future.
HRTO Dismisses Application Involving COVID-19 Vaccination Policy
7. Childs v. Bluewater Health, 2024 HRTO 1605 (Ghanam, November 12, 2024)
The applicant was a former casual temporary employee of the respondent Hospital. The applicant had refused to comply with the Hospital’s mandatory COVID-19 vaccination policy. The Hospital terminated the applicant’s employment. The applicant filed an Application with the HRTO alleging that the respondent discriminated against them concerning employment on the grounds of creed and that the respondent had engaged in reprisal contrary to the Code. The applicant alleged they had been terminated because they would not comply with the vaccination policy due to their creed.
The applicant argued that although the vaccination policy appeared neutral, “it had an adverse impact on those who could not be vaccinated due to a conflict with their creed beliefs.” The applicant further argued that the Hospital’s vaccination education program was “an attempt to brainwash the creed beliefs out of employees.” The applicant also alleged that the Hospital’s decision to terminate their employment was a form of reprisal for the applicant’s attempt to assert their creed rights under the Code.
The respondent argued that the applicant had failed to establish a prima facie case of discrimination. They argued that the applicant never raised any Code-related grounds with them during the employment period and did not request any accommodations. Further, the termination of the applicant’s casual temporary employment was unrelated to non-compliance with the vaccination policy. The Hospital supported these arguments with sound evidence.
By way of summary hearing, the Tribunal found in favour of the respondent. It determined that the application should be dismissed because there was no reasonable prospect that the application would succeed. The Tribunal rejected the applicant’s arguments that the respondent had applied the vaccination policy in a manner that was discriminatory to the applicant based on the applicant’s creed as the facts did not support this contention. The Tribunal also rejected the allegations of reprisal, as such allegations were unsupported by the evidence. In summary, the applicant failed to establish the requisite connection between their creed and any alleged adverse treatment.
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