COVID-19 vaccination policies mandated in high-risk settings

by Rhonda B. Levy and George Vassos of Littler

On August 17, 2021, Ontario announced that COVID-19 vaccination policies would be mandatory in high-risk settings, and the province’s exit from the Roadmap to Reopen would be put on hold. Therefore, until further notice, Ontario will remain in Step 3 of its reopening plan.

In its announcement, Ontario explained that it is taking these measures in response to data on the transmissibility of the Delta variant, experiences in other jurisdictions, the desire to protect the province’s most vulnerable (e.g., seniors, immunocompromised individuals and young children not eligible for vaccination), safeguard hospital capacity, ensure a safe return to school, and keep the province running.   

Hospitals and Home and Community Care Service Providers

Directive #6

The Chief Medical Officer of Health (CMOH) issued Directive #6, which applies to:

• Public hospitals within the meaning of the Public Hospitals Act;
• Service providers within the meaning of the Home and Community Care Act, 1994 with respect to their provision of community services to which that Act applies;
• Local Health Integration Networks within the meaning of the Local Health System Integration Act, 2006 operating as Home and Community Care Support Services with respect to the provision of community services and long-term care home placement services; and
• Ambulance Services within the meaning of the Ambulance Act, with respect to paramedics (collectively, the “Covered Organizations”).

COVID-19 Vaccination Policy

In accordance with Directive #6, effective September 7, 2021, every Covered Organization must ensure compliance with a COVID-19 vaccination policy (Policy) that requires its employees, staff, contractors, volunteers and students (collectively, the “Covered Individuals”) to provide:

• Proof of full vaccination against COVID-19;
• Written proof of a medical reason provided by a physician or registered nurse in the extended class that sets out:
  • A documented medical reason for not being fully vaccinated against COVID-19; and
  • The effective time period for the medical reason; or
• Proof of completing an educational session approved by the Covered Organization about the benefits of COVID-19 vaccination prior to declining vaccination for any reason other than a medical reason.  At a minimum, the session must address:
  • How the COVID-19 vaccines work;
  • Vaccine safety related to the development of the COVID-19 vaccines;
  • The benefits of vaccination against COVID-19;
  • Risks of not being vaccinated against COVID-19; and
  • Possible side effects of the vaccine.

If the Covered Organization is a public hospital, its Policy will apply to any businesses or entities operating on the hospital site.

Removal of Option to Provide Proof of Educational Session Completion

A Covered Organization may decide, however, to remove the option of providing proof of completing an educational session and require Covered Individuals to either provide proof of full vaccination, or written proof of a medical reason for not being fully vaccinated, as described above.  If a Covered Organization decides to remove this option, it must nonetheless make available to Covered Individuals an educational session that satisfies the requirements set out above.

Antigen Point-of-Care Testing

Every Covered Organization’s Policy must require that where a Covered Individual does not provide proof of full vaccination, but instead relies on written proof of a medical reason or the educational session, the Covered Individual must:

• Submit to regular antigen point-of-care testing for COVID-19 and demonstrate a negative result, at intervals to be determined by the Covered Organization, which must be at minimum once every seven days; and
• Provide verification of the negative test result in a manner determined by the Covered Organization that enables the Covered Organization to confirm the result at its discretion.

Non-identifiable Statistical Information

Every Covered Organization must collect, maintain, and disclose:

• Documentation that includes the following non-identifiable statistical information (“Statistical Information”):
  • The number of Covered Individuals that provided proof of being fully vaccinated against COVID-19;
  • The number of Covered Individuals that provided a documented medical reason for not being fully vaccinated against COVID-19;
  • The number of Covered Individuals that completed an educational session about the benefits of COVID-19 vaccination, where applicable; and
  • The total number of the Covered Organization’s Covered Individuals to whom Directive #6 applies.

Upon the Ontario’s Chief Medical Officer of Health’s request, every Covered Organization must disclose the Statistical Information to the Ministry of Health in the manner and within the timelines specified in the request. The Ministry may:

• Seek additional detail within the requested Statistical Information outlined above, which will also be specified in the request;
• Further disclose this Statistical Information; and
• Make it publicly available.

Compliance with the Occupational Health and Safety Act (OHSA) and its Regulations

Finally, Directive # 6 provides that Covered Organizations must comply with the OHSA and its Regulations. 

Schools and Child Care

In its August 17, 2021, news release, Ontario announced that for the 2021-22 school year, the Ontario Ministry of Education intends to:

• Introduce a vaccination disclosure policy for all:
  • Publicly funded school board employees;
  • Staff in private schools;
  • Staff in licensed childcare settings; and
• Require rapid antigen testing for staff who are not immunized against COVID-19; and
• Work with public health units and publicly funded school boards to run voluntary vaccination clinics in or nearby schools to make vaccines more accessible for eligible students, their families, educators and school staff. 

Other High-Risk Settings

The news release also provides that vaccination policies will be implemented for other high-risk settings such as:

• Post-secondary institutions;
• Licensed retirement homes;
• Women’s shelters; and
• Congregate group homes and day programs for adults with developmental disabilities, children’s treatment centres and other service for children with special needs, and licensed children’s residential settings.

Bottom Line for Employers

Covered Organizations to which Directive #6 applies are encouraged to become familiar with the Directive without delay since they have several tasks to accomplish prior to September 7, 2021, when they will be required to ensure that their Covered Individuals comply with a Policy.  To satisfy this requirement, prior to September 7, 2021, Covered Organizations must:

• Draft a Policy;
• Develop educational sessions and provide training for their delivery;
• Arrange antigen point-of-care testing; and
• Establish processes and provide training for the collection, maintenance, and disclosure of documentation that includes the Statistical Information.

We encourage Covered Organizations to which Directive #6 applies to seek the assistance of experienced employment counsel in drafting their Policies. 

At this time, no directives, legislation, or regulations have been issued providing details of how schools, childcare centres, and the other high-risk organizations are expected to implement their vaccination policies; a news release with only limited information announced that such policies will be implemented in these settings.  In the meantime, we encourage employers in such organizations to become familiar with the announcement and remain on the look-out for further details.  We will follow developments as they progress, and provide updates, as appropriate.