The world is watching with concern the Novel Coronavirus (2019-nCoV) outbreak, originating in Wuhan, China, and its spread to other countries, including Canada. The confirmation of cases in Canada is not unexpected in a world where international travel is the norm.
For healthcare providers who were on the front lines during the 2003 Severe Acute Respiratory Syndrome (SARS) outbreak in the Greater Toronto Area, it may seem all too familiar and, at the same time, quite different due to the lessons learned from the SARS outbreak. Significant scrutiny was brought to bear on the SARS outbreak, with four different commissions of inquiry opining on what worked well and what did not at the time. In the wake of SARS, hospitals and healthcare providers reviewed Infection Prevention and Control practices and also undertook pandemic and emergency planning.
In 2003, BLG’s Health and Employment lawyers advised numerous hospitals on the various legal issues that came to the fore during the SARS outbreak for hospitals and other employers.
With the Novel Coronavirus making headlines, we expect to see some of the same legal issues arising in the healthcare sector in particular, and for employers generally. Accordingly, we hope that the following overview of those issues will be helpful.
Healthcare sector: Clinical and legal issues
1. Hospitals are independent institutions governed by a Board of Directors, but also subject to broad statutory obligations under their governing and related legislation. In 2003, questions emerged as to the legal authority of the provincial government to issue mandatory directives that aimed to control day-to-day activities at hospitals, such as infectious disease screening for incoming patients, visitors and employees and the isolation of infected patients. Do the provincial government and other bodies have authority to require hospitals to take similar actions today?
- Yes: The Emergency Management and Civil Protection Act provides the provincial government with broad powers to make orders for the purpose of preventing, responding to or alleviating the effects of an emergency, including a public health emergency.
- Further, Ontario’s Health Protection and Promotion Act (HPPA) requires a hospital to report to the MOH of the public health unit in which the hospital is located, an inpatient or out-patient who has, or may have, a disease of public health significance or is or may be infected with an agent of a communicable disease. The MOH also has authority to require a hospital to monitor, investigate and respond to an outbreak of communicable disease within the hospital. Physicians and other healthcare providers who examine a person within the context of their professional practice are also required to make a report to the MOH if they form the clinical opinion that the person is suffering from a disease of public health significance or is or may be infected with a specified communicable disease. In a January 22, 2020, statement, Ontario Health Minister Christine Elliott reported that the Novel Coronavirus will be added as a designated reportable disease under Ontario’s public health legislation.
- Such a report is not a privacy breach under s. 39(2) of the Personal Health Information Protection Act, which allows a Health Information Custodian to disclose Personal Health Information (PHI) about an individual to the Chief MOH, or the MOH of a health unit, for the purposes of the HPPA – namely, preventing the spread of disease and protecting the health of Ontarians. This is an exception to patient confidentiality and does not relieve healthcare providers from otherwise maintaining confidentiality of the personal health information of any Novel Coronavirus patient.
2. Following 2003’s SARS outbreak, hospitals renewed their pandemic plans to ensure that emergency response measures and physical plant facilities were sufficient to deal with infectious disease outbreaks consistent with Ontario’s Hospital Management Regulation,which requires a hospital board to ensure, among other things, that:
- adequate plans are in place to deal with emergency situations that could place a greater than normal demand on the services provided by the hospital or disrupt the normal hospital routine;
- a medical staff committee has adequately addressed infection control issues; and
- there is an occupational health and safety program for hospital staff.
The hospital as employer
During the SARS outbreak, employers were faced with a number of challenges. Exposed employees were subject to quarantine and unable to attend work for weeks at a time. Other employees refused to attend work, fearing for their personal safety.
Under the Occupational Health and Safety Act, the right to refuse unsafe work does not apply to certain employees of a hospital, sanatorium, long term care home, psychiatric institution, mental health centre or rehabilitation facility. Provided that the unsafe working condition, such as the potential exposure to an infectious disease, is inherent in the employee’s work, or is a normal condition of the employee’s employment, or the refusal to work would directly endanger the life, health or safety of another person, such an employee is not entitled to refuse to attend work. Obviously, not all employees working in hospitals or the other listed institutions are front-line healthcare providers, and some may be entitled to refuse unsafe work.
All employers must be mindful of the leave protections in the Employment Standards Act, 2000, including the right to family responsibility leave and sick leave to care for themselves or a sick relative.
Employers must also be mindful of their obligation to provide workplaces that are free of harassment and discrimination. As information and disinformation spreads about the Novel Coronavirus, fear and ignorance may lead some employees and patients to blame and ostracize employees who are Chinese or otherwise of Asian descent.
Governments have authority to respond to any outbreak. In 2003, the Employment Insurance Regulations were amended to respond to the needs of people affected by SARS. The amended regulations applied to any SARS-related claims where an individual was quarantined. The amendments waived the two-week waiting period and requirement that a claimant provide a medical certificate. At the time of writing, it is impossible to predict whether a similar amendment will be required for the Novel Coronavirus outbreak.
Following the 2003 SARS outbreak, the healthcare sector, including public health, hospitals, long term care facilities and community care agencies, engaged in careful consideration of the lessons learned from Ontario’s experience with that outbreak, assisted in part by the recommendations of four Commissions of Inquiry. There were substantial investments made by the healthcare sector in emergency and pandemic plans in the event of a future outbreak. Reflecting back on that experience, the following issues are important to bear in mind if the Novel Coronavirus becomes prevalent in Canada:
- Information silos and idiosyncratic approaches to a pandemic response don’t work. It is important to have a uniform and collaborative response; therefore, establish a “War Room” or “Outbreak Response Team” with designated staff to communicate the latest evidence-based clinical information and directions to front-line staff. For example, the Novel Coronavirus resource page created by Public Health Ontario may be helpful.
- Consider the “precautionary principle”: that common sense, preventive actions to reduce risk need not await scientific proof of efficacy; erring on the side of caution to protect public health and safety is generally a good thing.
- Screening E.R. patients for symptoms of acute respiratory syndrome (ARS) has become common place; renew the importance of screening, with added scrutiny for key factors that heighten infectious disease suspicion (travel history, close contact history), so that potentially contagious persons can be moved into isolation promptly, reducing risk to others.
- Develop systems for managing a higher volume of documentation related to an outbreak response, for example, incoming public health and government information, screening forms and documentation related to staff PPE training.
- Ensure that staff are familiar with personal protective equipment and the significance of the donning and doffing sequence for infection control purposes.
- Determine and identify which staff are essential in the event of an outbreak and which staff may be permitted to work from home. Unlike 2003, remote work arrangements are more common and easier to facilitate in 2020.
For further information relating to legal issues in Health or Employment law, please reach out to our related contacts listed below. BLG has also created a COVID-19 Resource Centre to assist businesses on a variety of topics, including contractual risks, public disclosure requirements, education and criminal law.