March 18, 2020
To: Hospital and affiliated long-term care locals and assigned staff
Re: COVID-19
From: Michael Hurley and Dan Pike
As a result of the coronavirus pandemic, you face some very significant collective agreement and health and safety issues. We will do our best to support you through these challenges. Here are our recommendations to you on a number of burning issues.
LAYOFFS AND REASSIGNMENTS ARISING FROM CLINIC AND OTHER CLOSURES
It is vitally important to uphold our collective agreement rights, even in a time of crisis. Some employers have been incorrectly moving employees within the hospital as a result of program closures or curtailment, to staff up the opening of assessment centres and for other pandemic treatment measures. Some hospitals have also raised the possibility of “temporary” layoffs. In opening Assessment Centres, we ask that you take the position that the collective agreement provisions must prevail. Assessment Centres should be initially staffed following the language in your collective agreement for job posting and additional shifts and, if necessary, by reassignment. If your hospital claims to need to lay employees off as a result of cancellation of elective surgeries or other program closures or curtailment, it is especially important to ensure the hospital is following the collective agreement. The government has called on the hospital sector to ramp up capacity to handle the expected surge of coronavirus patients, including by scaling back elective surgeries. The government is not expecting hospitals to lay off staff. Please advise us immediately of any proposed layoffs.
In this moment of crisis, reducing the number of trained hospital employees available for work is totally inappropriate and irresponsible. This should be an “all hands on deck” approach, with the employer utilizing their ability to re-assign staff within the parameters of the collective agreement, rather than laying people off. The employer may claim the layoff is “temporary” or “short-term”. A short-term or temporary layoff is one that lasts for less than 13 weeks’ duration. It is very likely that elective surgeries and other programs curtailed under the current crisis will not have resumed within 13 weeks and that any layoffs will actually be long-term. The collective agreement provides significantly more rights in the case of a long-term layoff than in a short-term layoff. If your hospital notifies you of a short-term or temporary layoff, grieve that the layoff was not done in accordance with the collective agreement because the closure will last for more than 13 weeks and proceed with the issue to arbitration. By that time, it will be clear whether the layoff was actually long-term in which case the hospital was obligated to give 5 months’ notice, offer packages prior to giving individual notices of layoff, etc. Article 9.08 of the CUPE central hospital collective agreement allows for the hospital to reassign employees, so long as certain important conditions are met. Reassignments must:
1. Occur in order of reverse seniority;
2. Be to an appropriate permanent position with regard to the employee’s skills, abilities, qualifications and training;
3. Not result in a reduction in the wage rate or hours of work of the affected employee;
4. Be located at the same or nearby work-site;
5. Have the same or substantially similar shift or shift rotation;
6. Where more than one employee is to be reassigned, employees are entitled to select from the available appropriate vacancies in order of seniority.
If your hospital moves employees unilaterally without following the reassignment language, please grieve and assert the union’s rights. Employees may be reassigned to assessment centres so long as the above strict conditions are met. If reassigned staff normally work 8-hour shifts, they cannot be reassigned to 12-hour shifts—the remaining 4 hours can be filled by following calling-in language. Should the hospitals feel they need a more permanent scheduling solution, a vote for 12-hour shifts by the new unit members could be arranged. Under no circumstances should staff/locals agree to waive any provision in the collective agreement or enter into separate agreements with the employer (i.e. work-sharing programs).
HEALTH AND SAFETY ISSUES
Out of harm’s way
Pregnant employees, staff receiving chemotherapy, staff with compromised Immune systems, staff with rheumatoid illnesses or on steroids/anti-inflammatories should be moved out of direct contact with any potential or confirmed cases of COVID-19.
Personal Protective Equipment
CUPE is engaged in discussions with the Ontario government, the Ontario Hospital Association (OHA), The Ontario Long Term Care Association, other employers and our sister unions in the healthcare sector around how to protect healthcare workers during the COVID-19 pandemic.
Unfortunately, the position of the government currently is that COVID-19 is not airborne and that only contact/droplet precautions are required, except when performing aerosol-inducing procedures on a patient. This position is being taken because there is a shortage of personal protective equipment.
A number of respected scientific organizations, like the Journal of the American Medical Association, the Lancet, the Centre for Disease Control, the Centre for Infection Control and Disease Protections, Cal-OSHA and others recommend that COVID-19 should be treated as though it could be airborne. A list of references is attached to this memorandum. Airborne precautions include eye protection and an N-95 (or better) respirator. Our position is that any worker who will come into contact with a suspected or confirmed case of COVID-19 must be equipped with an N-95 (or better) respirator, face shield or goggles, gloves and gown. This includes screeners, persons doing triage or working in critical care, ICU or the ER in proximity to people who are confirmed cases or may be suffering from COVID-19. We are holding the line provincially for better protections for our members and we ask you to insist on these protections at the workplace level.
Right to refuse
Healthcare workers have a limited right to refuse unsafe work. A work refusal would trigger an investigation by the certified worker and employer representative and a request to the Ministry of Labour to investigate. An example of a potential work refusal: a pregnant cleaner asked to clean the room of a COVID19 patient and offered a surgical mask and face shield. Pregnant workers are at much greater risk if they contract COVID-19. She could insist on being reassigned. This could trigger a work refusal.
A more detailed outline of your rights to refuse unsafe work is coming.
PAY FOR EMPLOYEES WITH SUSPECTED OR CONFIRMED COVID-19 We ask that you take the following position with your employers: All employees, full or part-time (including casual) should be provided with paid sick leave if they exhibit symptoms of COVID-19 or are in isolation or quarantine during the COVID-19 pandemic. While technically part-time are not covered by sick leave, special measures are needed to encourage them to stay home when ill or suspected of being ill with coronavirus. No employee should be added to or progressed through any Attendance Management Programs (AMPs) as a result of illness relating to COVID-19, precautionary isolation or quarantine. Normal collective agreement or employer policy requirements that employees provide medical documentation will not apply to employees’ subject to COVID-19 related illness, self-isolation or self-quarantine. Legislation to this effect was announced on March 16. We know that we can count on the experience, dedication and leadership of local activists and staff representatives to hold the line. Please let us know how we can assist. In solidarity,
Michael Hurley Dan Pike President, OCHU/CUPE Ontario Healthcare Coordinator