COVID-19: CMOH Issues Letter of Instruction Requiring Vaccination Policies in the Congregate Care Sector

On August 31, 2021, the Ministry of Children, Community and Social Services (MCCSS) released a Letter of Instruction from the Chief Medical Officer of Health (CMOH) on Covid-19 Vaccination Policy requirements for MCCSS funded agencies, as well as accompanying guidance from MCCSS on how agencies are expected to meet these requirements.

While the Letter of Instruction and guidance documents are very similar to related documents issued to health care providers a couple of weeks ago (i.e. Directive #6 and Ministry of Health and Long-Term Care (MOH) guidance documents), there are a few key differences:

  1. Policy Deadlines:
    • The deadline for agencies to have policies in place and implemented is September 23, 2021 (not September 7, 2021 as previously communicated); and
    • The deadline for agencies to begin reporting statistics to MCCSS about their vaccination policies, vaccination rates, testing and other aspects of the policies is October 7, 2021, with monthly reporting required thereafter.
  2. Covered Agencies: The agencies covered by the Letter of Instruction include developmental services agencies (as defined in the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008 (SIPDDA), outside paid resources, intervenor services providers, residential or emergency shelters under the violence against women support services program or anti-human trafficking community supports program, and certain children’s residential and support programs.
  3. Limits on Mandatory Vaccination: The most important difference between Directive #6 and the Letter of Instruction is that the latter does not explicitly permit employers to actually make vaccination mandatory. In fact, it directs that agency policies must include employee choice to between vaccinating, showing proof of a medical exemption or taking an education session and declining vaccination subject to rapid testing. This may, in effect, preclude mandatory vaccine policies that would see existing employees having their employment terminated or being placed on an indefinite leave of absence as a consequence of refusing to vaccinate.
  4. Guidance on Medical Exemptions: The MCCSS guidance documents contain comparatively little information on the circumstances in which an employee will be considered medically exempt from vaccination.  We would recommend referring medical practitioners who are providing letters of support for medical exemptions with information from the MOH guidance documents.
  5. Guidance on Communications: Interestingly, the “communications” section in the MCCSS guidance focuses more on respecting “a right” not to be vaccinated, as opposed to respecting “a choice” not to be. This is an interesting little distinction between the two sources and may speak to more hesitancy about this new direction within MCCSS than within the MOH.

In addition, we note that MCCSS’s cover letter for the Letter of Instruction and Guidance document put agencies on notice that existing emergency orders will not continue to be extended indefinitely.  In short, MCCSS appears to be directly agencies to get their houses in order to resume “business as usual” in full compliance with legislative, collective agreement/contractual obligations without the cover of emergency order exemptions.

In the meantime, agencies have just over three (3) weeks to get their government mandated vaccination policies drafted and implemented and their rapid testing procedures for unvaccinated workers in place.   If you require legal assistance in drafting these policies and procedures, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.

Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.