Ontario Government Issues Emergency Order for Developmental Services Agencies

Following up on other recent Orders that were applicable to hospitals, long-term care facilities and retirement homes, the Government has now issued an Order applicable to employers in the developmental services industry. This Order was once again made under the Emergency Management and Civil Protection Act and gives “service agencies” temporary flexibility to modify staffing (without regard to collective agreement restrictions) and to dispense with certain administrative and other regulatory obligations.

Specifically, a service agency can do the following:

• Redeploy staff to different locations.
• Change the assignment of work, which can include assigning non-bargaining unit employees or contractors to perform bargaining unit work.
• Change scheduling or shift assignments.
• Defer or cancel vacations, absences or other leaves (regardless of whether such vacations, absences or leaves are established by statute, regulation, agreement or otherwise).
• Employ extra staff (whether full time, part time, temporary, contractors, volunteers) to perform work, including bargaining unit work.
• Collect information from staff about “their likely or actual exposure” to COVID-19 or about “any other health conditions that may affect their ability to provide services and supports.”

Agencies can implement these staffing measures despite any statute or collective agreement and, notably, despite any seniority or bumping provisions in a collective agreement. 

Additionally, there are various administrative obligations that have been temporarily suspended or reduced, including:

• Reducing the number of reports to the Ministry, except that serious occurrence reports must still be made and notifications are still required to be made to those “acting on behalf of the person with a developmental disability”.
• Not requiring agencies to “document information, unless it is necessary to ensure the safety, security and well-being of persons with developmental disabilities who receive services and supports from the service agency”. The Order does list certain documentation that must remain in place, including in relation to complaints, financial records, medical services, and abuse.
• Service agencies are not required to review individual support plans, unless necessary “to protect the health and safety of the person with a developmental disability when receiving services and supports”.
• Service agencies are not required to review a behaviour support plan for those who have certain “challenging behaviour” unless “there are significant changes related to the use of intrusive behaviour intervention strategies.”
• Service agencies may adjust staffing levels as identified in a person’s individuals support plan if they cannot be maintained and “use other measures to address the safety, security and well-being of persons with developmental disabilities.”
• Police record checks for staff and volunteers can be deferred provided that there are “appropriate measures to ensure the safety of persons with developmental disabilities.”
• Board of Director orientations are not required with the exception of agency policies on abuse prevention, identification and reporting.
• Service agencies may dispense with certain training and orientation requirements provided that staff and volunteers can still “meet the specific individual needs of the persons with developmental disabilities…in a manner that promotes their health, safety and well-being”. However, physical restraints may only be used by staff and volunteers fully trained in accordance with regulatory requirements.

Just like the other Orders, the purpose is to ensure that agencies have the flexibility to schedule or redeploy staff as necessary to assist in maintaining its essential services and in fighting the spread of COVID-19. As agencies are supporting extremely vulnerable individuals, the Government has recognized that agencies, now more than ever, need to be nimble and responsive.

Notably, any grievance related to a matter covered under the Order is deemed suspended for the duration of the emergency.

As the COVID-19 outbreak intensifies in Ontario, it is possible that the Government may issue similar Orders for other essential workplaces. We will continue to update our clients with respect to new developments as they emerge.

In the meantime, please reach out to us if you have any questions.

If you have any questions about COVID-19 and your workplace, or any other human resource law issue, please contact a member of our team. For more information about dealing with COVID-19, please visit our COVID-19 Resource Center.