THE EMPLOYERS' EDGE
CURRENT VACCINE POLICY MANDATES IN ONTARIO
As we blogged about previously, the Ontario and Federal governments have begun to make COVID-19 vaccination policies mandatory in certain workplaces. We have also seen announcements from high profile employers, for example Canada’s largest banking institutions, universities and colleges, the City of Toronto and other municipalities who intend to implement similar policies. Given the number of announcements and the increased interest in this topic, this week’s blog aims to clarify what we know and don’t know about vaccine policy mandates in the workplace.
On August 13, 2021, the Government of Canada announced that it will require all federal public servants (as early as the end of September 2021) and those working in the federally regulated air, rail and marine transportation sectors (by no later than the end of October 2021) to be vaccinated. This policy will extend to commercial air travellers, passengers on interprovincial trains, and passengers on large marine vessels with overnight accommodations. The government has committed to engagement with key stakeholders (e.g. unions and operators) but no additional implementation announcements have yet been made.
While the government has said it “expects” Crown corporations and other federally-regulated employers to institute similar policies, no specific details or timelines have been announced.
Unlike their federal counterparts, Ontario’s government has issued a much more restricted vaccination mandate in provincially regulated workplaces. As of the date of this blog, the province is mandating vaccination policies only in certain healthcare and childcare facilities. On the other hand, at least in the healthcare sector, the Province has offered a great deal more in the way of guidance for employers.
The mandate for vaccination policies in the healthcare sector is covered by the issuance of Directive #6 from the office of the Chief Medical Officer of Health (“CMOH”) on August 17, 2021. Organizations affected by the directive include:
- “public hospitals” within the meaning of the Public Hospitals Act
- “service providers” in accordance with the Home Care and Community Services Act, 1994;
- “Local Health Integration Networks” within the meaning of the Local Health System Integration Act, 2006;
- “ambulance services” within the meaning of the Ambulance Act; and
- where the organization is a public hospital, any business or entity operating on the hospital site.
The Directive requires these organizations, among other things, to “establish, implement and ensure compliance” with a vaccination policy that requires employees, staff, contractors, volunteers and students” to provide:
- proof of full vaccination against COVID-19; or
- written proof from a qualified practitioner of a medical reason they cannot be vaccinated; or
- proof of completion of an education session about the benefits of vaccination, although organizations may choose not to offer this option at all.
Individuals who do not provide any of the above must submit to antigen testing and demonstrate negative results on a regular basis. In addition, the CMOH has produced a detailed Resource Guide to assist organizations in complying with and implementing the Directive. Organizations covered by the Directive have until September 7, 2021, to institute their policies.
Child Care / Education
Also on August 17, 2021, the Ministry of Education announced its intent to introduce an immunization disclosure policy applying to employees of all publicly-funded school boards, staff in private schools and licensed child care settings for the 2021-2022 school year. While the details are scarce, we expect requirements similar to those described in the healthcare setting above. We understand the mandate will apply to child care Centre staff, home child care providers, home child care visitors, every person who is ordinarily a resident of the premises or regularly at the premises, volunteers, students on educational placements, Special Needs Resources and frequent visitors.
We expect more details, including the method of obtaining, administering and reporting test results to be released in the near future.
On August 24, 2021, the Ontario Government amended O. Reg 364/20: Rules for Areas at Step 3 and the Roadmap Exit Step, to include the following provision:
The person responsible for a business or organization that is open shall operate the business or organization in compliance with any advice, recommendations and instructions issued by the Office of the Chief Medical Officer of Health, or by a medical officer of health after consultation with the Office of the Chief Medical Officer of Health,
- requiring the business or organization to establish, implement and ensure compliance with a COVID-19 vaccination policy; or
- setting out the precautions and procedures that the business or organization must include in its COVID-19 vaccination policy.
The addition of this provision to the regulation may set the stage for more geographic or sector based requirements for businesses or organizations to institute vaccination policies. Some local medical officers of health have already published recommendations, including those in Toronto and Peel. However, it is unclear whether these recommendations create binding legal obligations; for example, the Toronto recommendations were issued prior to the amendment to O. Reg 364/20. It is also unclear whether these recommendations were made “after consultation” with the CMOH as the regulation requires. Regardless of the legal effect, the guidance offers is valuable for employers.
- Many government policies require the existence of a vaccine policy, but do not necessarily require vaccination. As an alternative, many employers may institute a policy that requires regular testing or limit/prohibit access to the workplace for those who can work from home.
- While your business may not be covered by these vaccination policy mandates directly, your employees could be. For example, employees engaging in interprovincial travel, working with or in healthcare, education or child care settings would likely be covered by the policies indicated above. In that case, you may want to consider instituting a policy of your own in order to avoid delays and ensure consistent expectations between your clients and your employees.
- Like all things COVID-19, the situation changes quickly and often. While your business may not be required to have a vaccination policy today, that could quickly change. It is a good idea to begin thinking about what such a policy would need to look like for your business and to monitor developments in your local Board of Health.
We here at CCPartners have already begun drafting vaccination policies for large and small employers in both the public and private sectors. If you have questions the lawyers at CCPartners are here to help. Click HERE to access CCPartners’ “Lawyers for Employers” podcasts on important workplace issues and developments in labour and employment law or contact any of our team members to answer you workplace questions.