UPDATED: Judge grants nurses' request for an injunction in battle with nursing homes, Labour Board sides with PSWs

Two health-care unions have won their battles against privately owned nursing homes, including one chain where more than 70 residents have died.

In a Superior Court ruling issued Thursday, the Ontario Nurses' Association (ONA) won an injunction that forces four long-term care homes to abide by the union's interpretation of two directives from Ontario's Chief Medical Officer of Health Dr. David Williams.

And on Friday SEIU Healthcare secured Labour Board orders concerning personal protective equipment, staffing levels, and other measures the union says are meant to keep their PSW members safe.

The ONA had filed for an injunction against Rykka Care Centres and its operating partner Responsive Group, which own and manage long-term care homes in Ontario including Eatonville Care Centre, Anson Place and Hawthorn Place, as well as Henley Place, managed by Primacare Living.

The first relates to the use of personal protective equipment — the union is asking the homes to stop restricting the nurses' access to N95 masks. The second allegation is that the homes failed to meaningfully cohort both residents and the staff who care for them to prevent the infection from spreading, per another directive.  The court's injunction orders that the nurses be given N95 masks when they deem it necessary, and that the homes implement the province's directive on resident cohorting.

In the ruling released late Thursday, Justice Edward Morgan slammed the nursing home chain for using a legal argument that suggested "nurses and other medical staff treating COVID-19 patients in LTC homes represent their own narrow, personal interests, while the privately-owned LTC homes represent broad, community-based interests."

"I can imagine that the irony of that submission is not lost on the Applicants," he wrote. "One need only read the affidavits of the individual nurses in this Application record to understand that they spend their working days, in particular during the current emergency situation, sacrificing their personal interests to those of the people under their care. And given the nature of the pandemic, they do this not only for the immediate benefit of their patients but for the benefit of society at large."

"To suggest that their quest for the masks, protective gear, and cohorting that they view as crucial to the lives and health of themselves and their patients represents a narrow, private interest seems to sorely miss the mark."

The injunction is in place until the parties settle the matter through the union grievance process or another court ruling is made.

However, the conflict of when N95 masks are needed remains active. The provincial government had intervened in the case, defending its directive on personal protective equipment, which limits N95 masks to certain aerosol-generating medical procedures and says they should not be used in routine care.

Health-care unions, including the ONA and SEIU Healthcare, have been encouraging their members to request them for routine care and, according to the government, there is not enough supply of the N95 masks for that rate of use.

In a statement on behalf of the homes, Responsive Management said it's "comfortable" with the court's decision.

"It confirms for all parties that the Chief Medical Officer of Health directives are appropriate to protect staff in long-term care," it said. "We will continue to comply with all the Chief Medical Officer of Health directives and the order of the Court. We hope, with the cooperation of the Ontario Nurses' Association, to move to arbitration quickly so we can confirm our compliance with the Chief Medical Officer of Health directives."

Meanwhile, SEIU Healthcare also took the Eatonville and Anson Place homes owned by Rykka Care Centres before the Labour Board, as well as Altamont Care Community owned by Sienna Senior Living, which employed a PSW who died from COVID-19.

It argued that the homes were not doing enough to keep residents and workers safe and secured several orders:

• The Ministry of Labour inspector will visit the workplaces and conduct inspections under the Ontario Occupational Health and Safety Act on a weekly basis — and it noted those inspections will have to be done physically, rather than remotely.
• The homes are required to inform the employees and the union of the status of cases and deaths from COVID-19, in both residents and staff.
• The homes will implement cohorting of residents — in line with the order from the Superior Court.
• The homes will ensure each facility is appropriately staffed.
• All visitors and staff in the facilities will wear appropriate PPE.

"It’s a stain on our province that it required filing these applications to have the provincial government and for-profit long-term care corporations do the right thing, especially in a time of crisis when people are getting sick and dying," said SEIU Healthcare President Sharleen Stewart in a statement.