Medical officer of health effectively mandates employers institute COVID-19 policies

by Rhonda B. Levy and George Vassos of Littler

On August 20, 2021, Toronto’s Medical Officer of Health (TMOH) issued a statement effectively mandating that local employers institute a workplace vaccination policy (WVP) to protect their employees and the public from COVID-19.  Although the statement is styled as a “strong recommendation,” when it is read in the context of the legislative scheme governing COVID-19 and occupational health and safety in Ontario, its compulsory nature becomes evident.  Specifically, ss. 2(1) and 2(2) of Schedule 1 (General Rules at Step 3) of Regulation 364/20 (Rules for Areas at Step 3 and at the Roadmap Exit Step) made under the province’s Reopening Ontario (A Flexible Response to COVID-19) Act,1 require a business to operate (a) in compliance with all applicable laws, including the Occupational Health and Safety Act (OHSA) and the regulations made under it; and (b) in compliance with the advice, recommendations and instructions of public health officials.  Accordingly, employers in Toronto should consider all advice, recommendations and instructions in the TMOH’s August 20, 2021 announcement to be effective mandates.

In addition, the statement indicates that Toronto businesses may apply to host an on-site vaccination clinic and register for an initial assessment call here, and strongly recommends that organizations determine a method for attendees of gatherings of 1,000 individuals or more to demonstrate proof of their vaccination status, and follow public health measures established under the Reopening Ontario (A Flexible Response to COVID-19) Act.

The statement includes a Toronto Public Health (TPH) workplace toolkit to provide guidance on developing a WVP.  The toolkit strongly recommends that, at a minimum, WPVs:

• require workers to provide proof of their vaccination series approved by Health Canada or the World Health Organization;
• require unvaccinated employees to provide written proof of a medical reason from a physician or nurse practitioner that includes whether the reason is permanent or time-limited;
• list alternative options for workers who decline to get vaccinated for reasons protected by applicable human rights legislation, or who are unable to complete their vaccination series for medical reasons. Options include using additional personal protective equipment (PPE); frequent COVID-19 testing; worker relocation; and modified work or reassignments. In the event of a COVID-19 outbreak, and assuming that workers without vaccination records are unvaccinated, employers are advised to not permit unvaccinated and partially vaccinated workers (who have only received one dose of a two-dose COVID-19 vaccine series) to work in the outbreak area. If reassignment is not possible, employers are to consider whether unvaccinated workers may use vacation or unpaid leave until it is safe for them to return to the workplace;
• set a reasonable deadline for compliance, and confirm potential consequences for non-compliance;
• identify how workers’ vaccination status information will be collected and protected in accordance with privacy legislation; and
• explain the level of risk posed by COVID-19 in each unique workplace setting.

In its statement, the TMOH also recommends that the following additional workplace precautions be put in place to help reduce virus spread: COVID-19 testing; strict adherence to physical distancing and other public health measures; wearing PPE; and appropriate ventilation.

Additionally, the TMOH reminds employers that they can play a critical role in promoting the importance of the COVID-19 vaccine by providing vaccine information from credible sources; providing translated resources; supporting vaccine champions to initiate conversations with their peers; providing paid leave to get vaccinated; reminding workers that they are legally entitled to up to three paid sick days if they have side effects from the vaccine; offering incentives to get vaccinated; and hosting an on-site vaccination clinic.

Finally, the TMOH suggests that the recommendations in the City of Toronto’s August 19, 2021 announcement that its staff will be required to be fully vaccinated by October 30, 2021, go above and the TPH’s own recommendations, and are a model for other workplaces to adopt.

Bottom Line for Employers

Employers in Toronto are now required to institute a WVP.  In drafting them, Toronto employers should follow the advice, recommendations and instructions in in the City of Toronto’s August 19, 2021 announcement and the TPH toolkit, and  also seek the assistance of experienced employment counsel. 

Update

On August 24, 2021, Ontario published O. Reg. 577/21, which, effective immediately, amended  s. 2 of Schedule 1 of O. Reg. 364/20 by adding a s. 2.1.  Section 2.1 states that 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 (a) requiring the business or organization to establish, implement and ensure compliance with a COVID-19 vaccination policy; or (b)  setting out the precautions and procedures that the business or organization must include in its COVID-19 vaccination policy.  In subsection (2.1), “medical officer of health” means a medical officer of health as defined in subsection 1 (1) of the Health Protection and Promotion Act.