Without exhausting the list of populations where the coronavirus has found an enthusiastic home in Canada, there are two that have led to much tutting and promises to reform: the elderly living in long-term care homes (where sometimes younger people with certain challenges also live) and migrant workers employed on farms. But we already knew the conditions in these settings left much to be be desired. Nevertheless, in both cases, the rules and laws governing regulatory oversight have told us what happens when those responsible lose sight of the human reality and when those responsible for implementing the law fail in their responsibilities.
The number of COVID-19 deaths among residents in long-term care homes is over 1,836 as of July 11, 2020, and the number of staff having died from the virus is 7 (see here). (There are still 23 homes with an outbreak, which could mean only one case that has prompted the home to report an outbreak.) The Ministry’s data show over 5,500 cases of coronavirus were of residents in long-term care homes, constituting about 15% of all cases in the province; nearly 2,400 cases were of health care workers associated with long-term care outbreaks (6.5% of all Ontario cases).
The Globe and Mail has reported that “more than 1,000 migrant farm workers have tested positive for COVID-19”, based on a survey the paper did of public health units (see “Ottawa did not enforce rules for employers of farm workers“). There have been three deaths among migrant workers as of June 21st. The Globe and Mail‘s report is only the latest in revelations about how poor enforcement of rules on farms employing migrant workers, as well as inadequate rules, have led to outbreaks of the virus and some deaths among migrant workers on farms.
Apart from the conditions under which migrant workers have lived previously, current policies have inflamed the impact of the pandemic. According to The Globe‘s report, “for a six-week period at the outset of COVID-19, the government stopped conducting housing inspections under the [Temporary Foreign Worker] program altogether. When the audits resumed, they were done remotely.” Workers who test positive but are asymptomatic have been permitted to work as long as they maintain distance from workers who have tested negative. However, the medical officer of health for Windsor-Essex, one of the worst hit areas as far as farm outbreaks are concerned, refused to allow migrant workers to return if asymptomatic (see here).
(The approach taken to asymptomatic but virus-positive migrant workers is similar to the policy for health care workers. Currently health care workers who are asymptomatic and are awaiting testing results “may continue to work using the appropriate precautions recommended by the facility, which will depend on the reason for testing” (see Ontario Ministry of Health guidelines). Earlier, according to a report in The Star, health care workers returning from March break from outside Ontario were not required to isolate if they were asymptomatic.)
The conditions facing many migrant workers are detailed in a June 2020 report by The Migrant Workers Alliance for Change, appropriately entitled Unheeded Warnings: COVID-19 and Migrant Workers in Canada, addressing the living conditions, lack of access to health care and other issues. However, these issues and those affecting long-term care homes, treated by many (not including The Migrant Workers Alliance) as if they have been newly discovered, have been reported and discussed often before. These are problems not only in this time of pandemic, although they are certainly that, but have been problems that have tainted the temporary workers program for many years.
In its 2012 report on vulnerable workers and precarious work, the Law Commission of Ontario discussed the conditions in which migrant workers lived (disclosure: I was the executive director of the LCO at the time). In addition to consultations with workers themselves, as well as unions and others involved in the program, the report relied on and referred to the many extensive studies that had been undertaken to that point. For a significant report, see Fay Faraday’s <a href="http://Made in Canada How the Law Constructs Migrant Workers’ Insecurity”>Made in Canada: How the Law Constructs Migrant Workers’ Insecurity (2012) and a Canadian Medical Association Journal article, “Temporary migration, chronic effects: the health of international migrant workers in Canada” (2011) by Kerry Preibisch and Jenna Hennebry.
There have been others since. For example, a 2018 study on housing considered the inadequacy of housing and the problems with regulation; a report in The Star linked the study with conditions during the pandemic. Ironically, according to The Star, a spokesperson for Employment and Social Development Canada, which commissioned the housing report, blamed the pandemic for delays in implementing the report’s recommendations.
We have long known about the troubles of long-term care homes. In May of this year, a CBC story about the report by the military about conditions in five long-term care homes began “News of deplorable conditions inside some of Ontario’s long-term care homes continued to rock the province Wednesday….”, but this was not news to those who had already been familiar with the conditions in some long-term care homes (the CBC report lists the egregious conditions listed in the relevant “homes”). (The Ontario premier had requested the military’s assistance to alleviate the insufficient number of staff and the heavy work load of staff who were working in the homes.) In some cases, resident care had become dependent on the services provided by family members who were not longer allowed in the facilities. Structural arrangements in some homes made it difficult to isolate residents who tested positive. A 2012 study indicates problems that have existed in long-term care homes and also explains how the population has changed, from residents who needed some care to residents with chronic conditions needing a great deal of care, without the resources and other changes required to adapt (“The thin blue line: Long term care as an indicator of equity in welfare states” in Canadian Women’s Studies (see here for a link).
A 2009 report by Pat Armstrong for the Canadian Centre for Policy Alternatives, while focused on workers in the homes, also identified problems facing residents. Another recent report tracked complaints about homes beginning in 1991; its title summarizes the pre-pandemic reality, “Think Ontario’s long-term care issues are new? Think again. It took decades to get here” (see here).
In short, we knew long before the pandemic that the living conditions and other issues for at least some migrant workers and for residents of too many long-term care homes fell below the standard in which we should expect people to live and even below the standards they were expected to meet. During the pandemic these conditions exacerbated the risk the virus posed to migrant workers and to residents of long term-care homes, and the accompanying disregard for ensuring adequate equipment for healthcare workers in the latter, increased the risk to them.
Making a bad situation even worse, the decisions to cut inspections of long-term care homes and to carry out remote inspections of both long-term care homes and living conditions for migrant workers at farms raise questions of the liability of those who made and approved these decisions.
CBC reported that last year there were nine comprehensive inspections of long-term care homes (see here), despite the requirement of annual inspections, including unannounced inspections. This reduction in inspections occurred prior to the pandemic and thus were not the result of an attempt to protect inspectors from the virus.
At least one and it seems more inspections of long-term care homes have been undertaken remotely during the pandemic (see here), although some inspectors volunteered to do in-person inspections (see here for detailed statement by OPSEU, the union representing inspectors, about this issue). Remote inspection is, of course, intended to protect inspectors from contracting the virus in places where it is rampant. (The Ombudsman has announced an investigation into the oversight of long-term care homes during the pandemic.)
Similarly, inspectors from Employment and Social Development Canada carried out many, if not most, inspections of farms employing migrant workers remotely (see here).
And so we come to the reason these populations, who did not select their living conditions, who did not, for example, choose to gather in large groups to enjoy themselves, have been particularly vulnerable to outbreaks of the coronavirus. Let’s be clear: the residents of long-term care homes have not been vulnerable because they are elderly — age may be related to severity of consequences (although we have learned that this is more complicated than we thought and younger people may also suffer long-term effects), but it does not affect the likelihood of contracting it and even in well-ordered homes, may be affected by the spread, given congregate settings. The residents of long-term care homes have been vulnerable because we do not as a society provide the resources required to live a decent life. This is true even during “the best of times”, never mind during this pandemic when all the problems identified over the years have coalesced to result in tragedy. In some cases, the laws governing long-term care are inadequate; in other instances, the funding is insufficient to bring laws into reality. In other cases, the decisions made by government, such as in relation to inspections, have revealed their lack of care for residents.
The migrant workers did not enter Canada with the virus and they isolated prior to beginning work. They contracted the virus in Canada because of the conditions of their employment. On the one hand, we want migrant workers because, for example, they pick the vegetables and fruit we expect to enjoy in the summer. Yet while the conditions are some farms meet the standards, on others they do not reflect the value we place on the result of the work migrant workers perform. They are outsiders to society and even if the rules appear to require that conditions meet a certain standard, the oversight provided does not ensure the standards are met.
The pandemic has not revealed anything we didn’t already know about how residents live in at least some long-term care homes and how migrant workers live on farms. Instead, it has merely required us to face the inevitable reality of how as a society we are prepared to treat long-term care home residents and migrant farm workers. It has reminded us that deficiencies in the law and its application can have a heavy cost.