Jane Letton

Taking another look at some common legal questions during COVID-19 (see the first column on this in our Summer 2020 issue)

We are well over a year into the COVID-19 pandemic and Ontario nurses are still being asked to shoulder significant responsibilities, which raises employment and practice questions.

Redeployment

The Ontario government has authorized widespread redeployment of nurses so that facilities can be responsive to the shifting health-care demands as a result of COVID-19 and its variants. Redeployment can be daunting on many levels. 

Nurses may find themselves redeployed to a new work environment where they are required to utilize skills or perform procedures that are new or unfamiliar, raising concerns about patient safety. The College of Nurses of Ontario (CNO) Practice Guideline on Refusing Assignments and Discontinuing Services provides helpful guidance. 

Where a nurse is being asked to take on a new assignment, they must consider whether they have the skills and competencies to perform the required tasks. Where a nurse believes they lack skills or competence in a specific area, they must raise their concerns with their superior. By identifying what they are lacking, they can receive appropriate training, supervision and/or reassignment. 

Also, nurses may have newly redeployed nursing staff under their supervision. In this case, it is their responsibility to ensure delegated tasks are appropriate to the skill and ability of the “new” nurses on staff, and that they are properly supervised. Redeployment to a new work location brings with it new health and safety risks. When going to a new work environment, it is important to familiarize yourself with the health and safety protocols and resources. For example, a nurse may be redeployed from a surgical unit to a long-term care (LTC) facility. While they may be up-to-date on the proper PPE requirements, they may not have thought about health and safety concerns that may arise that are specific to the new workplace. The Ontario Nurses’ Association (ONA) has developed a Health and Safety checklist for redeployed nurses. RNAO CEO Dr. Doris Grinspun also wrote a blog post about how to search out the best new evidence regarding COVID-19 response. 

Redeployment can have a significant impact on a nurse with personal responsibilities (i.e. their children or aging parents) or an underlying health condition. The Ontario Human Rights Code requires that employers accommodate employees who are caregivers or who themselves require accommodation. Employees are expected to participate in the accommodation process by accepting available child care options or providing medical information to support an accommodation request. For example, an employer may be expected to provide additional time to arrange child care rather than imposing a change of work location/hours on short notice. However, the nurse will still be expected to make best efforts to arrange child care within a reasonable timeframe.

In April 2021, the province authorized nurses working in hospitals to provide patient care services outside their regular scope of practice. Nurses are still expected to meet the standards of practice and to only perform acts which they are competent to perform. This is a temporary measure set to expire Sept. 22, 2021 (at time of publication). Please check the RNAO and CNO websites regularly for updates.

Paid sick leave

Also as of April 2021, for workplaces without paid sick leave, Ontario provides for three paid sick days (up to $200 per day). This too is a temporary benefit, set to expire Dec. 31, 2021. Once this has exhausted, you may be eligible for the Canada Recovery Sickness Benefit or the Canada Recovery Caregiver Benefit to provide income support while you are unable to attend work. Presently, these federal benefits are slated to end Oct. 23, 2021; however, this will depend on the state of the pandemic.

RNAO has spoken out widely on the issue of paid sick days, both before and during the pandemic. The focus is to stop the spread of COVID 19 and protect all health-care workers. The association has advocated for months on the need for a minimum of five days, and during a pandemic, a minimum of 10 paid sick days.

Testing and illness

Finally, if you have tested positive for COVID-19, or have symptoms, in addition to the paid sick days provided for by the Ontario government, you may be eligible for WSIB benefits. When you file a claim, be aware that WSIB will assess your claim by determining whether your risk of contracting COVID-19 due to your workplace is higher than the public at large. It will also need to determine that work “significantly contributed” to your illness. If you have been exposed to COVID-19 at the workplace, but do not have symptoms, you can still report an exposure incident, which will allow your claim to be fast-tracked in the event you develop symptoms/are diagnosed. Nurses who are required to self-isolate/quarantine, but do not have symptoms or a diagnosis, are not eligible for WSIB benefits.  

WSIB also provides benefits for nurses who are required to vaccinate, and who experience a serious and unexpected adverse reaction which results in them not being able to attend work. A serious and unexpected adverse reaction is one that requires medical attention beyond first aid and/or requires your absence from work for more than a few days.

As always, RNAO members who subscribe to RNAO’s Legal Assistance Program (LAP) can contact Mara Haase, LAP administrator (mhaase@RNAO.ca  or 1-800-268-7199 x 223) if they think they may need legal advice. Please note: Nurses must have LAP coverage in place at the time of the event that gave rise to the request for legal assistance. Don’t have LAP? Add it to your membership by calling 416-599-1925 or 1-800-268-7199 and asking to speak with a membership and services staff member.