On March 13, 2020, the Government of Québec (the “Government”) declared a public health emergency in response to the COVID-19 pandemic, which has since renewed until June 3, 2020. In accordance with the Government’s declaration and faced with a virus that has disproportionately affected seniors and other vulnerable individuals, the Minister of Health and Social Services (the “MSSS”) set out significant measures affecting seniors’ facilities through various ministerial orders and directives. As outlined in our recent post, Seniors’ Housing – Keeping up with the Corona, these facilities are divided into four broad categories: long-term care facilities (“CHSLD”), Intermediate and Family-type Resources (“RI-RTF”) and Private Seniors’ Residences (“RPA”).
The following sections detail some of the applicable changes to those frameworks in light of the COVID-19 pandemic.
- Staffing seniors’ homes during the pandemic
In order to maintain staffing during the COVID-19 crisis, the government has implemented temporary measures that affect workplace benefits and conditions for workers in the healthcare and social services sector, allow for the rapid redeployment of workers and provide increased financial incentives for those working in the healthcare sector.
Ministerial Order 007-2020 allows employers to temporarily suspend union leaves, vacation time and restrictions on the movement of personnel and restrictions on works schedules to meet the increased demand for staffing caused by the COVID-19 virus. Furthermore, employers may hire additional personnel as temporary salaried persons, with contract valid for the duration of the public health emergency.
In accordance with Ministerial Order 2020-030, nursing supervision may be performed remotely and care attendants of private seniors’ residences are no longer required to hold documents attesting their mastery of skills related to their activities under the Regulation respecting the activities engaged in and described in sections 39.7 and 39.8 of the Professional Code.
Ministerial Orders 008-2020, 19-2020 and 28-2020 respectively allow for the redeployment of public service personnel linked to the health and social services network, staff from school boards and CEGEPs and any public service or governmental personnel into other functions according to need. These redeployments are allowed regardless of whether or not employment levels meet the criteria normally associated with the duties they are assigned.
Furthermore, pursuant to Ministerial Order 2020-035, the Government has provided weekly sums ranging from 100$ to 500$ per week for workers who work or otherwise accept transfers to work in RI-RTF and CHSLD centres during the crisis. Note that these incentives only apply to workers who are physically present while working in the various centres and only for those who provide non-administrative services.
As of May 15, 2020, the Government took additional measures to regulate staff placement agencies and prevent any excessive increases to the rates such agencies can charge their clients. Pursuant to Ministerial Order 038-2020, “service providers” (which include healthcare workers such as nurses and beneficiary attendants) may not enter into a service contract with any body in the health and social services sector for a compensation higher than what is set out in the Ministerial Order. Furthermore, service providers are required, before beginning a new assignment, to furnish to any body in the health and social services sector a list of all places worked within the 14 days preceding the assignment and information with regard to COVID-19 exposures, possible exposures and information concerning whether he or she received, or is waiting for, a COVID-19 test result.
Finally, Ministerial Order 038-2020 also targets staff placement agencies by prohibiting the hiring of any employee (or an individual receiving subsidies) that works for a an organization or entity in the health and social services sector or any other governmental organization (such as universities and school boards) that would have the new hire act as service providers pursuant to a services contract with an entity in the health and social services sector.
- Regulating visits and excursions for residents
On March 23, 2020, the MSSS put in place a series of highly restrictive measures restricting access to and from seniors’ facilities, which include the following:
- A suspension of all visits to persons living in a CHSLD, RI-RTF or RPA, save for exceptional and required visits from caregivers for humanitarian or health reasons;
- A prohibition on all excursions outside the aforementioned facilities for residents.
Concerned with the strain on the mental health of individuals living in seniors’ residences that these restrictions were causing, the Government recently announced that it would ease back on some of these measures. According to a directive from the Government of Québec, seniors living in RPA’s are, as of May 5, 2020, allowed to go outside without supervision and take their cars. Those who have mobility issues are authorized to use the help of a caregiver for excursions. As of May 11th, 2020, the MSSS officially repealed its previous restrictions and allowed visits and excursions for those living in CHSLD and RI-RTF facilities in the following circumstances:
- Visits are allowed for humanitarian reasons (such as the imminent passing of a resident) or for care required by a resident’s state of health;
- Visits by authorized caregivers are permitted, but the parties will be required to demonstrate that they understand the risks inherent to their visits and confirm their consent to precautionary and preventative measures put in place by public health authorities and the operators of CHSLD, RI-RTF and RPA facilities;
- Excursions required for humanitarian reasons or otherwise by a person’s state of health;
- Supervised excursions for residents of CHSLD and RI-RTF’s.
Additionally, only necessary upkeep and repairs are permitted in RPA facilities to ensure the security of residents.
- Safety measures and admittance of residents
Along with its various orders, the MSSS has set out a series of guidelines and directives on its website and affiliated websites concerning the appropriate safety measures that must be taken by staff, visitors, residents and prospective residents in CHSLD, RI-RTF and RPA facilities.
In addition to enforced social distancing and proper hygiene guidelines for staff and visitors alike, MSSS directives require all staff to wear a mask when they have to work within two meters of an individual living in a CHSLD, RI-RTF or RPA. In a recent press conference, the Prime Minister of Québec mentioned that all employees of public and private CHSLD facilities will be tested systematically for COVID-19, regardless of whether or not they present any signs or symptoms associated with the virus.
Any and all prospective residents looking to be admitted to CHSLD, RI-RTF and RPA facilities must be tested before admittance. Individuals who test positive may not be admitted to facilities that have not had a prior case of COVID-19. In any event, newly admitted residents to CHSLD, RI-RTF and RPA facilities must be quarantined in their rooms for a period of 14 days to ensure they do not present any symptoms after admittance. With these quarantine periods in mind, the Government has also recommended the creation of “buffer zones” as separate transitory spaces for prospective residents prior to their full integration into their respective facilities.
Similarly, due to the ongoing spread of COVID-19 in some CHSLD’s, the Government has recommended that “hot” and “cold” zones should be created in facilities that have or have had a COVID-19 outbreak by grouping infected residents together temporarily in order to offer better services to those individuals and avoid the spread of the virus to non-infected residents.
Specific to RPAs and due to the autonomy of residents, operators of these facilities are, as of May 11th, 2020, required to have a mechanism in place to ensure delivery of products or goods to residents. While not related to the COVID-19 virus specifically, a guide for the prevention of infections in RPAs was also released by the MSSS in 2019 for general guidelines concerning infection prevention.
- Lasting effects of the COVID-19 virus
During a press conference on May 15, 2020, The Prime Minister also mentioned that the private nature of certain CHSLD facilities has made it more difficult to train staff and transmit information concerning measures taken during the COVID-19 pandemic. As a result, the Government is evaluating a reform that could transform all private CHSLD’s into facilities governed by the Integrated Health and Social Services Centres and Integrated University Health and Social Services Centres. Furthermore, the labor costs for private CHSLD, RI-RTF and RPA facilities might be increased on a long-term basis by the COVID-19 virus. Two major unions, the Syndicat québécois des employés de service (SQEES) and the Union des employés de service, sent a formal request to the Government for the issuance of an order in council that would set the minimum working conditions and salaries for beneficiary attendants working for the aforementioned private establishments.
In light of the Government of Québec’s recent announcement concerning potential CHSLD reform and the multitude of ongoing measures taken to ensure the safety of seniors in Québec, there is a lot of uncertainty for those who operate seniors’ housing. The Dentons Health Care team is available to assist current or prospective owners of private seniors’ residences and long-term care facilities to navigate the changes to ensure a smooth transition during the COVID-19 pandemic. For inquiries in Québec, please contact David Gravel. For inquiries in other Canadian provinces or elsewhere, any of the other Health Care team members would be happy to assist you.
 Order in Council No. 177-2020.
 Order in Council No. 544-2020.
 M.O. 2020-030.
 Chapter C-26, r.3.
 M.O. 2020-008.
 M.O. 2020-019.
 M.O. 2020-035.
 M.O. 2020-038.
 These obligations are also applicable to staff placement agencies providing staffing to any body in the health and social services sector.
 M.O. 2020-038.
 M.O. 2020-009.
 Government of Québec, Québec annonce certains assouplissements pour les usagers des résidences pour aînés (5 May 2020), online : < https://www.quebec.ca/premier-ministre/actualites/detail/quebec-annonce-certains-assouplissements-pour-les-usagers-des-residences-pour-aines/ >.
 M.O. 2020-034.
 Ministry of Health and Social Services, COVID-19 – Directives au réseau de la santé et des services sociaux, online : < https://msss.gouv.qc.ca/professionnels/covid-19/covid-19-directives-au-reseau-de-la-sante-et-des-services-sociaux/a-propos/>. For facility specific directives, please visit the following link : CHSLD: < https://msss.gouv.qc.ca/professionnels/covid-19/covid-19-directives-au-reseau-de-la-sante-et-des-services-sociaux/chsld/ >, RI-RTF: < https://msss.gouv.qc.ca/professionnels/covid-19/covid-19-directives-au-reseau-de-la-sante-et-des-services-sociaux/ri-rtf/ >, RPA: < https://msss.gouv.qc.ca/professionnels/covid-19/covid-19-directives-au-reseau-de-la-sante-et-des-services-sociaux/residences-privees-pour-aines/ >.
 Services Québec, Fil Information : Pandémie de la COVID-19 – Le gouvernement annonce l’octroi de 6 millions de dollars aux sociétés de transport de la CMM pour l’achat de masques (15 May, 2020), : < http://www.fil-information.gouv.qc.ca/Pages/Article.aspx?motsCles=&listeThe=&listeReg=&listeDiff=&type=&dateDebut=2020-05-15&dateFin=2020-05-16&afficherResultats=oui&TaillePage=50&idArticle=2805155782 >.
 Ministry of Health and Social Services, COVID-19 – Directives au réseau de la santé et des services sociaux, online: < https://msss.gouv.qc.ca/professionnels/covid-19/covid-19-directives-au-reseau-de-la-sante-et-des-services-sociaux/a-propos/>.
 Ministry of Health and Social Services COVID-19 – Directives au réseau de la santé et des services sociaux : CHSLD, online: < https://msss.gouv.qc.ca/professionnels/covid-19/covid-19-directives-au-reseau-de-la-sante-et-des-services-sociaux/zones-tampons/ >. For facility-specific guidelines conerning transfers to CHSLD facilities, please see : Minister of Health and Social Services, Trajectoire : admission ou retour en CHSLD après un séjour en centre hospitalier ou en milieu de réadaptation / admission en CHSLD en provenance de la communauté, online: <https://publications.msss.gouv.qc.ca/msss/fichiers/2020/20-210-108W.pdf >. For similar guidelines concerning RPAs and RI-RTF’s, please see: < Trajectoire : Intégration / réintégration en RI-RTF, RPA, RAC ou autre milieu de vie après un séjour en centre hospitalier ou un milieu de réadaptation / Intégration / réintégration en RI-RTF, RPA, RAC et autre milieu de vie en provenance de la communauté, online: < https://publications.msss.gouv.qc.ca/msss/document-002584/ >.
 Ministry of Health and Social Services COVID-19 – Directives au réseau de la santé et des services sociaux : CHSLD, online : < https://msss.gouv.qc.ca/professionnels/covid-19/covid-19-directives-au-reseau-de-la-sante-et-des-services-sociaux/chsld/ >.
 M.O. 2020-034, supra note 13.
 Ministry of Health and Social Services, Guide de préventions des infections dans les résidences privées pour ainée, (2019), online : <https://publications.msss.gouv.qc.ca/msss/document-000056/>.
 Pandémie de la COVID-19 – Le gouvernement annonce l’octroi de 6 millions de dollars aux sociétés de transport de la CMM pour l’achat de masques, supra note 15.
 Demande Officielle de Décret dans les centres privés d’hébergement des personnes aînées, Online : < https://www.sqees.ca/en/actualites/demande-officielle-de-decret-dans-les-centres-prives-dhebergement-des-personnes-ainees-les-syndicats-prennent-au-mot-le-premier/ >