Little Known Hiring Restriction in Long-Term Care
For long-term care (“LTC”) operators in Ontario, staffing compliance is often framed in terms of staffing levels, qualifications, training requirements, and police record checks. However, the legislative framework also contains hiring restrictions that may receive less attention. One such provision is subsection 81(4)(b) of the Fixing Long-Term Care Act, 2021.
Subsection 81(4)(b) of the Fixing Long-Term Care Act, 2021 (the “Act”) states that “[e]very licensee of a long-term care home shall ensure that no staff member is hired...if they have been found guilty of an act of professional misconduct prescribed in the regulations.”
Subsection 255(2) of Ontario Regulation 246/22 prescribes the following as acts of professional misconduct for the purposes of subsection 81(4)(b) of the Act:
An act of professional misconduct as a member of a health profession as defined in the Regulated Health Professions Act, 1991.
An act of professional misconduct as a member of a regulated profession as defined in the Fair Access to Regulated Professions and Compulsory Trades Act, 2006.
An act of professional misconduct under any other scheme in Ontario or in another jurisdiction that governs a profession, occupation or commercial activity, including a scheme a person is not required to participate in in order to practice or engage in the profession, occupation or activity.
Notably, the prescribed categories extend beyond findings made by Ontario health regulatory colleges and may capture misconduct findings arising in other professions, occupations, and jurisdictions.
The regulation does contain exceptions. In general, the prohibition does not apply where more than five years have passed since the relevant conviction or finding of misconduct. In the case of a misconduct finding that resulted in a suspension, the five-year period runs from the end of the suspension. If the misconduct finding did not result in a suspension, the five-year period runs from the date of the finding itself. Accordingly, a historical finding of professional misconduct will not necessarily disqualify an individual indefinitely from employment or volunteer opportunities in the long-term care sector.
This statutory scheme creates a significant compliance obligation for LTC homes. Before hiring an individual, licensees should consider whether the individual has been found guilty of professional misconduct that falls within one of the categories prescribed by the regulation. The scope of the prescribed categories is broad and includes other regulated professions and regulatory schemes in Ontario and other jurisdictions. As a result, findings that may not affect an individual's ability to practise their profession could nevertheless raise issues in the long-term care context.
Given these obligations, LTC operators should ensure that hiring processes and volunteer recruitment include appropriate screening and documentation measures. Pre-hiring due diligence and protocols in LTC settings may include:
Verifying registration and standing with the relevant regulator
Reviewing publicly available disciplinary decisions
Obtaining declarations from candidates regarding past findings of misconduct
Identifying whether there is a finding of professional misconduct that falls within the categories prescribed by the regulation
If there is a finding of professional misconduct that is not prescribed in the regulation, assessing the risk contextually (considering the severity of the conduct, how recently it occurred, any remediation undertaken by the professional, and relevance to the professional’s work in the LTC setting)
Documenting all steps taken in the hiring process
Conclusion
From a risk management perspective, long-term care operators should ensure that hiring protocols include appropriate checks of disciplinary history and, where necessary, careful review of the applicable regulations.
More broadly, this provision serves as a reminder of the increasingly integrated nature of health regulation in Ontario. Professional discipline, statutory compliance, and operational decision-making should not be reviewed or considered in isolation. Rather, they intersect in ways that can affect both health professionals and long-term care home operators and require a coordinated approach.
If you have questions about how subsection 81(4)(b) of the Act applies to your hiring practices or professional history, our team can help. Please contact us to discuss your specific circumstances and obtain practical guidance.
