Canada: Labour And Employment Issues Arising From The Implementation Of The Retirement Homes Act, 2010

The Retirement Homes Act, 2010 [the "Act"], whose provisions are being gradually phased into force since April 2012, sets out a new regulatory scheme for the retirement home industry in the province, and will likely impact retirement homes' duties and obligations as employers, as well as labour relations in the sector as a whole.

The Act applies only to entities that are a residential complex or part of a residential complex, and:

  • are occupied primarily by persons who are 65 years of age or older,
  • are occupied by at least the prescribed number of persons who are not related to the home's owner, and
  • make at least two care services available to residents.

The Act does not apply to premises governed by other provincial legislation, such as the Long-Term Care Homes Act, Public Hospitals Act, Homes for Special Care Act, Private Hospitals Act, or Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008, as such premises are not considered "retirement homes" under the Act.

The Act sets out a wide and far-reaching range of obligations that retirement homes must comply with. Most notably, as of July 2012, all entities wishing to operate as retirement homes in Ontario must now apply to the Retirement Homes Regulatory Authority (RHRA) for a license. Some of the Act's other provisions, which address safety standards and compliance, staff skills, hiring guidelines and prescribed qualifications and training for staff, are in the process of being phased into force. As unionized retirement homes enter collective bargaining negotiations, it will be important to understand these obligations in order to ensure that they are properly considered at the bargaining table. For those that remain non-unionized, these obligations equally apply.

HIRING OF STAFF

The Act provides that as an employer, a retirement home has specific obligations towards its staff, including the duty to ensure that staff have the proper skills and qualifications to perform their duties. In addition, as of July 1, 2014, every retirement home must ensure that specific screening measures, including police background checks, are conducted before hiring staff and accepting volunteers to work in the home. Notably, the Act defines "staff" broadly to include individuals who work or provide services at the home as an employee, individuals who work or provide services pursuant to a contract or agreement with the home, and individuals who work or provide services pursuant to a contract or agreement between the retirement home and an employment agency or other third party. As such, retirement homes will likely need to streamline their hiring policies and processes in order to ensure uniform compliance with the new hiring measures.

ZERO TOLERANCE ON ABUSE AND NEGLECT OF RESIDENTS POLICY

The Act sets out a number of care services standards, including the creation of an individualized plan of care for each resident, and directions for staff with regards to these services.

The Act also currently requires every retirement home to develop and enforce a written policy to promote zero tolerance on the abuse and neglect of residents [the "Zero Tolerance Policy"]. Ontario Regulation 166/11 [the "Regulation"] sets out detailed requirements for the contents of the Zero Tolerance Policy, as well as an accompanying program for the prevention of abuse and neglect of residents. The program must contain procedures for investigating and responding to alleged, suspected or witnessed abuse and neglect of residents, and must set out the consequences for staff who abuse or neglect residents.

All staff must be continuously trained with respect to the Zero Tolerance Policy and program, including with respect to power imbalances between staff and residents, and the potential for abuse and neglect by those in a position of trust, power and responsibility for resident care. Retirement homes will be required to consider the requirements relating to the Zero Tolerance Policy and program in the context of any existing progressive discipline policies and thresholds for just cause dismissal of staff.

DUTY TO REPORT AND WHISTLE-BLOWING PROTECTION

The Act places a duty on retirement homes to report to the RHRA Registrar every alleged, suspected or witnessed incident of abuse or neglect of a resident of the home, and to take "appropriate action" within the context of each case. The Regulation sets out a specific process for the investigation of complaints relating to the care of residents.

To the extent that abuse or neglect complaints involve allegations against retirement home employees, it remains to be seen how the Zero Tolerance Policy and the investigation process set out under the Regulation will interact with progressive discipline policies and employees' rights under the applicable collective agreement.

The Act also provides wide-ranging whistle-blowing protection for staff and residents in the context of reporting abuse or neglect, and provides that staff may not be harassed, dismissed, suspended or disciplined for providing information regarding an incident. Contraventions to the whistle-blowing protection may be brought before an arbitrator under the collective agreement, or a complaint may be brought to the Ontario Labour Relations Board.

TRAINING

As noted above, the Act will require that retirement homes undertake a wide range of extensive training of staff in a number of areas, such as the protection of residents from abuse or neglect, the protection of residents from the inappropriate use of restraints, and residents' rights. In addition, as of July 2013, retirement homes will be required to provide extensive and on-going training to direct care staff as a condition of continuing to have contact with residents. Some of the training required for staff in those positions will include abuse recognition and prevention, mental health issues, behaviour management, and residents' use of personal assistance devices.

EFFECT ON THE EMPLOYMENT RELATIONSHIP

As is apparent from the extensive nature of some of the above-noted requirements, the regulatory framework imposed by the Act will likely have an impact on the terms and conditions of employment in retirement homes. The new resident care standards and staff policies imposed by the Act may be accepted by arbitrators and courts as new employer standards of care towards residents, and potentially, staff. It also remains to be seen whether, and to what extent, courts and arbitrators take into consideration the new requirements, policies and standards in individual determinations relating to staff discipline and just cause dismissals.

Adjudicators will also likely need to determine how the standards and policies put into place by the Act will interact with existing provisions of applicable collective agreements. While it is likely that employers will be able to rely on Management Rights provisions to place new hiring requirements, administer necessary training, augment job descriptions and alter workplace policies, some of these changes will likely also trigger some other collective agreement terms.

IMPACT ON COLLECTIVE BARGAINING

Thus far in the retirement home sector, collective agreements have been negotiated individually, or in small groups. As such, retirement home collective agreements have often differed widely from one another, particularly in wage rates and the types of employees performing work in the same classifications and in the same geographic areas. In contrast, the highly regulated nursing/long-term care home industry has been characterized by the centralized negotiation of agreements between up to 100 facilities, which have created precedents for almost all negotiations and collective agreements in that sector.

The new regulatory scheme in the retirement homes sector may impact the way that collective agreements are negotiated in the sector. As noted earlier, the Act's imposition of a uniform set of policies and requirements on retirement homes in a number of areas will likely mean that retirement homes across the province will find themselves facing similar labour and employment issues. As such, retirement homes may well find that they are better served by the centralized collective bargaining process that currently exists in the long-term care industry.

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