[Note – this article has been updated based on new information released on March 10, 2022]
In a press conference today (March 9, 2022), the Province of Ontario announced that the Reopening Ontario Act would be allowed to expire on March 28, 2022 and that all emergency orders sustained under it would expire 30 days afterwards on April 27, 2022.
This is very important news for the developmental services sector. All of the emergency orders relied on by the sector are given legal force by the Reopening Ontario Act. These include the following orders:
- Ontario Regulation 121/20 (Emergency Staffing and Redeployment) – This order has been used by Agencies throughout the pandemic to do anything necessary in respect of staffing and redeployment and in spite of contracts or collective agreements in order to prevent, respond to, or alleviate outbreaks of COVID-19. This order also exempted employers from many of the full requirements of the Quality Assurance Measures regulation.
- Ontario Regulation 177/20 (Congregate Care Order) – This order imposed a very limited single employer order on developmental services congregate care settings, but perhaps more importantly, it required such agencies to comply with all public health recommendations and instructions.
- Ontario Regulation 195/20 (Bill 124 Exemption Order) – This exempted temporary COVID-19 related payments from the impact of Bill 124 (wage restraint legislation) in many developmental services settings.
- Ontario Regulation 364/20 (Step 3 of Reopening) – This order sets out many rules relevant to developmental services Agency, including the obligation to follow vaccination policies issued by the Chief Medical Officer of Health.
The announcement also stated that a number of changes would be coming specifically to long-term care and other congregate care settings. Key changes include:
- Mandatory masking will be lifted in congregate living settings on effective April 27, 2022.
- Mandatory vaccination policies will no longer be required by the provincial government effective March 14, 2022,
With respect to the latter, the Chief Medical Officer of Health (CMOH) announced that letters of instructions and directives requiring various forms of these policies in the hospital sector, the long-term care sector, and the developmental services sector will all cease to be effective on March 14, 2022. However, the requirement to continue rapid testing all DS workers (issued in December 2021) will remain in effect for the time being. (Updated on March 10, 2022)
It’s important to note that both the Ministry of Health and the Ministry of Children, Community and Social Services emphasized that this will not prevent organizations from continuing to impose vaccination policies on their own authority. Indeed, keep in mind that most of the case law upholding mandatory vaccination policies for employees has come from settings where there was never a government requirement to implement mandatory vacation or vaccination policies at all. Based on the foregoing, the government’s change does not mean employers must immediately vacate their vaccination policies. It does, however, mean that regular and ongoing review and updates to policies are advisable.
It is difficult to understate what a shift in policy these changes are for employers within the sector. Such employers will be expected to move from an emergency footing to a “return to normal” in their legal dealings. Contracts and collective agreements will no longer be able to be overridden to respond to the pandemic, and many regulatory obligations will kick back in.
At the same time, what this does not change are employers’ ongoing obligations under the Occupational Health and Safety Act and the Quality Assurance Measures regulation to continue to take measures to protect the health and safety of both workers and people supported. That can continue to include rules like mandatory masking, various forms of vaccination policies, screening and isolation, and other infection and control measures. This change comes at the same time that the Chief Medical Officer of Health for Ontario warned that the Pandemic is not over and the risk is not gone. He also encouraged vulnerable people to keep wearing masks for the foreseeable future.
What employers should do in the meantime is review their current operations to determine what changes they need to make to account for these rules expiring. This may involve reviewing what regulatory measures they have been deferring, what payments they will need to cease, and what staffing measures they will need to let go.
PooranLaw will continue to monitor legal developments related to emergency legislation and provide updates online. In the meantime, if you require legal assistance in determining how these policies apply to your organization, 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.