On October 5, 2020, the Chief Medical Officer of Health for Ontario updated Directive #5, which now provides clear guidance that N-95 or superior protection respirators, along with other personal protective equipment (“PPE”), must be provided to health care staff working on the front lines in long-term care facilities or hospitals dealing with COVID-19 outbreaks.
Directive #5 sets out the requirements with respect to PPE for all health care workers employed by or in hospitals and long-term care homes. These rules are mandatory, and employers must follow them. Prior to these changes, Directive #5 had not been updated since April 10, 2020.
Lawyers at Goldblatt Partners recently filed an application for judicial review on behalf of OCHU-CUPE, SEIU and Unifor in order to try to increase the protections for workers based on the evolving scientific evidence around the transmission of COVID-19. As we prepared for the litigation, the government contacted the unions seeking to mediate a resolution.
After a week of negotiations, the government agreed to make substantive improvements to Directive #5. These changes mean that hospitals and long-term care homes must give workers access to better protections when they are dealing with patients or residents who may have COVID-19.
Under the new Directive #5, workers at hospitals and long-term care homes who are interacting with suspected or confirmed COVID-19 patients or residents must be given, at a minimum, the following PPE regardless of their ability to distance from the patient or resident:
- Surgical/procedure masks
- Face shields or goggles, and
- Appropriate isolation gowns
In long-term care homes, workers have to wear surgical masks at all times during shifts, except when not in contact with residents during their breaks.
Workers have the right to a N-95 respirator in three clear situations:
1. When the workplace is in an “outbreak” and the worker is within two metres of a patient or resident with COVID-19
When a hospital or a long-term care home has an outbreak of COVID-19, any workers who may come within two metres of a known or suspected COVID-19 patient or resident have a right to a N-95 respirator. This includes those performing patient care and all other types of work conducted in the facility (i.e. cleaning, dietary, maintenance).
A worker must ask the employer for a N-95 respirator, but the employer must provide it when it is requested.
Whether or not the workplace is in an “outbreak” of COVID-19 is decided by the local medical officer of health, not an individual employer
2. When a regulated health professional decides a N-95 respirator is needed
Every time a doctor, RN, RPN or other regulated health professional interacts with a known or suspected COVID-19 patient or resident, they have to conduct a point of care risk assessment to determine whether they need to wear a N-95 respirator.
If a regulated health professional decides that a N-95 respirator is required when interacting with a COVID-19 patient, their employer is required to give a N-95 respirator to that worker and every other worker who is present for the patient interaction in question. Note that this request can no longer be denied by the employer for any reason, in contrast to the old Directive #5, which referred to “not unreasonably denied”.
3. When certain kinds of medical procedures are done on a COVID-19 patient or resident
All workers in any room where an Aerosol Generating Medical Procedure (“AGMP”) is being performed on a COVID-19 patient or resident must wear a N-95 respirator. A list of AGMPs is provided in Directive #5.
Workers must also wear a N-95 respirator if they are in a room where AGMPs are probable or frequently performed, even if there is no AGMP being performed at the time they are in that room, for example if a worker is in the room to clean or maintain it in between patients or residents.