Yesterday, Ontario announced it will be requiring health care providers, as well as congregate care and day program providers in the developmental services to adopt vaccination policies with certain minimum standards. While the Province has not made vaccination a condition of employment or continuing to work, it is requiring workers to choose from the following options: vaccinate, show that they have a medical exemption, or undergo an education session on the benefits and risks of vaccination. Those who are unvaccinated will have to undergo regular surveillance testing to catch cases of COVID-19 early.
Mandatory vaccination has been a hot topic since the start of the pandemic. Our Firm has spoken extensively about it in our regular COVID-19 webinar series, as well as about the pre-pandemic law surrounding mandatory vaccination and how to build a vaccination policy. The pre-pandemic case law primarily dealt with mandatory flu vaccination, and generally frowned on mandatory vaccination for existing employees. Arbitrators instead favoured policies that allowed an employee the choice to vaccinate or face extra health-precautions (like being held out of work without pay during outbreaks).
Mandatory surveillance testing has also been a hot topic throughout pandemic. Both retirement homes and long-term care homes were subject to orders or strong directions from the Province to require regular surveillance testing against COVID-19 for their staff. However, the developmental services sector had no such official cover. While believe that the case law does support an employer’s right to require surveillance testing, the lack of formal cover left some risk.
Despite public pressure, the Government has shown resistance to mandatory vaccination. Instead, the Province has chosen a choice-based approach, aiming to encourage vaccination without outright requiring it to work in high-risk fields. This approach was first started on July 1, 2021, when the Province started requiring Long-Term Care Homes to adopt vaccination policies requiring employees to show proof of vaccination, proof of a medical exemption to vaccination, or else to go through mandatory vaccination education. Long-Term Care Home employees were already subject to regular and mandatory surveillance testing too. It seems that this policy is now being expanded with today’s announcement.
New Rules from the Chief Medical Officer of Health
This afternoon, Ontario’s Chief Medical Officer of Health Dr. Kieran Moore announced that starting September 7, 2021, the following workplaces must adopt a policy on vaccination and testing meeting the government’s minimum requirements:
- Congregate group homes and day programs for adults with developmental disabilities, children’s treatment centres and other services for children with special needs, and licensed children’s residential settings;
- Home and community care providers;
- Post-secondary institutions;
- Licensed retirement homes; and
- Women’s shelters.
These policies must apply to all of the following types of workers: employees, contractors, staff, students, volunteers, and (where applicable) ambulance services.
The policy requires each worker to provide proof of one of the following three things to the employer:
- Full vaccination against COVID-19;
- A medical reason for not being vaccinated against COVID-19; or
- Completion of a COVID-19 vaccination educational session.
Individuals who do not provide proof of full vaccination against COVID-19 will be required to undertake regular rapid-antigen testing (with testing kits provided by the Province and the Federal government). Agencies will be required to track and report on the implementation of their policies to the Province.
Outstanding Questions and What to Expect
The announcements this afternoon left two questions unanswered.
First, it is not clear whether the province will provide legal authority for developmental service agencies to go beyond the new rules and outright require vaccination if they want to. Dr. Moore initially stated in his public address that these were just minimum standards, and the Province would support agencies that wanted to go farther. However, a later comment seemed to walk this back, indicating that this sort of authority may only be provided if the community risk level warranted it. It also was not entirely clear from his remarks whether this authority to require vaccination would be available to developmental service providers or just hospitals.
Second, Dr. Moore did not comment on who would provide and pay for the mandatory educational session that this new policy will require unvaccinated employees to take. It is expected that the Province will at least provide some sort of a digital education module. However, it is not clear whether the time reviewing this module will have to be paid by the employer and, if so, whether that pay will be compensated by the Province.
It is hoped that these answers will be given soon, and Dr. Moore has promised more information in the days and weeks ahead.
There are also some changes that we can expect in the near future in response to this. Right now, O. Reg. 177/20 requires all employees (regardless of vaccination) to only work for one developmental services sector congregate care provider. This is in contrast to the long-term care home and retirement home sectors, which only require employees to limit who else they work for if they are not fully vaccinated. However, with this new change in vaccination and testing policy, it is expected that O. Reg. 177/20 will be amended soon to bring the developmental services sector in line with other sectors.
The main takeaway from these new announcements is that the Province is providing cover to expand vaccination policies and take stronger measures to encourage vaccination. It also finally provides cover for our sector to engage in rapid testing. Agencies should take this opportunity to review their policies and see if any changes are required.
PooranLaw will continue to monitor legal developments related to COVID-19 vaccination and testing policies. In the meantime, if you require legal assistance in drafting these policies, 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.