As of January 1, 2014, section 64 of the Retirement Homes Act, 2010 (RHA) came into force and it imposes obligations on retirement home owners/operators regarding the screening of employees and volunteers. To be in compliance with this part of the RHA, changes may be required in relation to the manner in which your retirement home hires staff and volunteers. The legislation applies to employees and volunteers, whether they are recruited or hired directly by you or through a staffing agency.
With a few exceptions, the new requirements will apply to staff, volunteers, and agency workers. If an individual is working in a retirement home under an arrangement with a staffing agency and is providing direct care to residents, the requirements of this section of the RHA will apply. In those cases, while the staffing agency may take steps to ensure its staff is screened in compliance with the RHA, the ultimate responsibility to ensure that staff is screened in compliance with the legislation rests with the retirement home owner/operator. You should take steps to review and amend the agreement(s) that you may have with staffing agencies to include terms that ensure the agency agrees to their ongoing compliance with the RHA’s screening requirements, to promptly disclose to you all information gathered prior to any staffing placement, and to allow for your periodic audit of the staffing agency’s screening protocols.
The new screening requirement does not apply to three categories of staff and volunteers. The requirement will not apply to an individual who:
- Occasionally works in a retirement home if the individual:
- Occasionally provides maintenance or repair services to the home,
- Does not provide direct care to residents, and,
- Is monitored and supervised by the licensee in accordance with written policies that the licensee has prepared to monitor and supervise persons who provide occasional maintenance or repair services.
- Is a member of the College of Physicians and Surgeons of Ontario, the College of Nurses of Ontario, or the Ontario College of Pharmacists.
- Is under 18 years of age.
The changes to the RHA require that all staff and volunteer candidates undergo screening measures prior to being hired or accepted to work in retirement homes. The screening measures must be conducted by a police force within six months before the retirement home hires the staff or permits the volunteer to work in the home. As screening must occur before the employment or volunteering begins, it is not an option to hire someone and then have the police check performed. It is therefore important that an employment offer or volunteer arrangement be in writing and conditional on satisfactory background screening results.
The amendments require that a background check include a “vulnerable sector” screen. A vulnerable sector screen is a search of the RCMP National Repository of Criminal Records, Pardoned Sex Offender Database and other police databases. The information disclosed is extensive and can include: criminal record (adult and/or young offender, including summary offences), outstanding charges, finding of not guilty by reason of mental disorder, probation, prohibition and other judicial orders in effect, convictions/pending charges under the Child and Family Services Act, apprehensions and/or contact under the Mental Health Act, and suspect/culprit information where the release of such information will not hinder any ongoing investigation.
In addition to the screening described above, every staff member or volunteer who applies to work, or who already works in a retirement home, must provide the home with a signed declaration disclosing the following information for the period since the individual’s last police background check, or if no background check has been conducted, since January 1, 2014:
- Every offence with which the individual has been charged under the Criminal Code(Canada), the Controlled Drugs and Substances Act (Canada) or the Food and Drugs Act (Canada) and the outcome of the charge.
- Every order of a judge or justice of the peace made against the person in respect of an offence under the three acts identified above, including a peace bond, probation order, prohibition order or warrant.
- Every restraining order made against the individual under the Family Law Act orChildren’s Law Reform Act.
The staff member or volunteer must provide this declaration to you promptly each time he or she has been made aware a charge or order has been laid or made against them, or they have been convicted, or a charge has been otherwise disposed of.
Once you have received the required information, using the information to make employment decisions must be approached cautiously to avoid liability. You will need to balance the concurrent objectives of protecting your home’s residents, staff and visitors, while also complying with your obligations under human rights legislation. Making employment decisions on the basis of certain protected grounds may be found to be illegal by way of the Ontario Human Rights Code. For example, it is illegal to refuse to hire an individual because of the individual’s disability, which might include mental illness, unless the disability cannot be accommodated by the employer to the point of undue hardship. Each employment decision based on information that a person might have a mental illness must therefore be approached cautiously. It is advised that legal advice be sought before a decision is made regarding the retention or non-retention of employment or volunteer candidates to avoid potential liability. It is important to note that no employee or volunteer should be hired or permitted to commence work in a home prior to your receipt and consideration of the screening results.
Moving forward, you may wish to assign an individual or team of individuals whose responsibility it will be to ensure compliance with the new screening requirements of theRHA. It would be advisable to have on hand certain template forms that include: Criminal Activity Declaration Form, Employment or Volunteer Candidate Consent to Release Personal Information form, and letters to provide to local, provincial, or federal police agencies. It is also strongly advised to incorporate clauses into employment offers or volunteer arrangements stating that such offers or arrangements are conditional on satisfactory background screening results.
You must ensure that the employees you have designated to handle the personal information of employment or volunteer candidates are trained on how to review, act on, and protect the personal information gathered through the screening process. This should include regular training with respect to human rights and privacy law such as thePersonal Information and Protection of Electronic Documents Act, (PIPEDA).
You should prepare communications and consider implementing learning sessions to educate current staff and volunteers regarding the new requirement under the RHA that they must provide you with declarations. We advise that you have all staff and volunteers sign such a declaration once a year. Staff and volunteers should be informed of their obligation to promptly report any occurrences as outlined above and not wait until the yearly declaration to inform you of any such occurrence.
For further information regarding the new requirements of the RHA, please feel free to contact us. We can provide you with the template forms described above, provide more information in regards to your obligations under PIPEDA, and can provide you with individualized advice in regards to employment or volunteer considerations when there are human rights issues at play.