Ontario issues guidance on proof of vaccination status for organizations

by Rhonda B. Levy, Barry Kuretzky and George Vassos of Littler

On September 14, 2021, Ontario released Regulation 645/21 and a guidance document, which provide support to businesses and organizations in the implementation of their vaccination requirements, which will commence on September 22, 2021.  Regulation 645/21 amended Schedule 1 to Ontario Regulation 364/20 under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (ROA) by adding a new section 2.1. 

The Requirement

Patrons

Complete and accurate proof of full vaccination status and identification must be:

• Provided by patrons at the entry point of applicable premises of specified businesses and organizations; and
• Reviewed and confirmed by the business or organization. 

Any such information provided by a patron may not be retained by the business or organization. 

These are baseline requirements; businesses or organizations are not precluded from establishing their own additional  policies or requirements pertaining to their patrons.  Furthermore, all other health and safety measures remain in effect (e.g., capacity limits, patron screening, masking, physical distancing and collection of patron contact information).   

Applicable premises of businesses and organizations

The list of premises of businesses and organizations to which the proof of full vaccination requirement will apply includes:

• Indoor areas of restaurants, bars and other food or drink establishments without dance facilities (excludes outdoor patios and takeout and delivery);
• Indoor and outdoor areas/patios of food or drink establishments with dance facilities, including nightclubs, restoclubs and other similar establishments (excluding takeout and delivery);
• Indoor areas of meeting and event spaces, including banquet halls, conference/convention centres (with limited exceptions);
•  Indoor areas of facilities used for sports and recreational fitness activities, including waterparks and personal fitness training. This also includes gyms, fitness/sporting/recreational facilities, pools, leagues sporting events, and the indoor areas of facilities where spectators watch events (limited exceptions apply);
• Indoor areas of casinos, bingo halls, and other gaming establishments;
• Indoor areas of concert venues, theatres, and cinemas;
• Indoor areas of bathhouses, sex clubs and strip clubs;
• Indoor areas of horse, car racing tracks, and other similar venues; and
• Indoor areas of places where commercial film and television production takes place where there is a studio audience (does not include cast and crew members).

What Constitutes Full Vaccination Against COVID-19?

Health Canada has approved the Moderna and Pfizer COVID-19 vaccines (both mRNA), and AstraZeneca/COVISHIELD and Janssen (Johnson & Johnson) (both non-mRNA).

For purposes of the proof of full vaccination requirement, a person is fully vaccinated against COVID-19 if they have received:

• The full series of a COVID-19 vaccine authorized by Health Canada, or any combination of such vaccines;
• One or two doses of a COVID-19 vaccine not authorized by Health Canada, followed by one dose of a mRNA vaccine authorized by Health Canada, or
• Three doses of a COVID-19 vaccine not authorized by Health Canada. 

The final dose must be received at least 14 days before providing the proof. 

In addition, businesses and organizations must comply with guidance published on the Ministry of Health’s website specifying what constitutes proof of identification and of being fully vaccinated against COVID-19, and the manner of confirming proof of vaccination. 

Exemptions

Entering for work purposes and not as patrons

The proof of full vaccination requirement does not apply to workers, contractors, repair workers, delivery workers, students, volunteers, inspectors or others entering the business or organization for work purposes and not as patrons.

Other purposes for entering

The proof of full vaccine requirement does not apply where a patron is entering an indoor area solely:

• To use a washroom;
• To access an outdoor area that can only be accessed through an indoor route;
• To make a retail purchase;
• While placing and picking up an order, including placing a bet or picking up winnings in the case of a horse racing track;
• While paying for an order;
• To purchase admission; or
• As may be necessary for the purpose of health and safety.

Age

The following patrons are exempt from the proof of full vaccination requirement:

• Children under 12 years of age; and
• Patrons under 18 years of age who are entering the indoor premises of a facility used for sports and recreational fitness activities solely for the purpose of actively participating in an organized sport (e.g., sports leagues, organized pick-up sports, dance classes, martial arts, and swimming classes), in accordance with guidance published by the Ministry of Health.  This exemption applies to training, practices, games, and competitions.

Documented medical reason

Those who provide a physician’s or registered nurse’s written document to the business or organization that sets out a documented medical reason for not being fully vaccinated against COVID-19 and the effective time period for the medical reason are exempt from the proof of vaccination requirement.  The business or organization must review the written documentation to ensure the name of the person in it matches the identification provided and that the physician’s or registered nurse’s information is complete and includes their name and contact information, identifying logo or letterhead, statement that there is a medical reason for the individual’s exemption, and that any effective time period for the medical reason includes the date the patron is seeking access to the business or organization.  

Weddings and funerals

Those entering the indoor premises of a meeting or event space, including a conference or convention centre, solely for the purpose of attending a wedding or funeral service, rite or ceremony, but not an associated social gathering, are exempt from the proof of vaccination requirement. For a limited time, between September 22 and October 12, 2021, those entering such an indoor premises for the purpose of attending such an associated social gathering, can gain access if they can produce a negative antigen COVID-19 test taken no more than 48 hours prior instead of proof of full vaccination.

Also exempt are those attending social gatherings associated with a funeral service, rite or ceremony that is held in the indoor premises of a meeting or event space located in a funeral establishment, cemetery, or crematorium operated by a person licensed under the Funeral, Burial and Cremation Services Act, 2022.

Vaccine Verification Process

Between September 22 and October 22

Ontario residents

The following versions of the COVID-19 vaccination receipt are acceptable as proof of full vaccination, and will be accepted if the person’s name and date of birth on their identification document matches the vaccination receipt:

• A paper copy of the receipt of first and second dose provided on site at the time of vaccination;
• An email version sent to the recipient’s address for their records;
• A vaccination receipt downloaded or printed through the COVID-19 vaccination provincial portal; or
• A vaccination receipt obtained by calling the Provincial Vaccine Booking Line at 1-833-943-3900.

Visitors to Ontario

Unless they qualify for an exemption, patrons visiting Ontario will also be required to show proof of full vaccination and proof of identification.

Beginning October 22 – Digital Vaccine Certificate

Beginning October 22, Ontario will make available an enhanced digital vaccine certificate with a unique QR (Quick Response) code and accompanying verification application that will allow users to securely and safely verify their vaccination status when scanned.  Following this date, patrons will be able to provide a paper copy of their receipt or a digital copy of their enhanced vaccine certificate with QR code to provide proof of vaccination.

Proof of Identity

A photo identification is not required to prove identity. Proof of identity can be established using documentation issued by an institution or public body, provided it includes the holder’s name and date of birth, and they match the name and date of birth on the patron’s vaccination receipt.  Examples of acceptable proof of identity include birth certificate, citizenship card, driver’s license, or government-issued identification card such as health card, Indian Status Card/Indigenous Membership Card, passport, or Permanent Resident card.

Expired documents    

Ontario residents

Ontario residents may provide expired Ontario government-issued identification, including driver’s license, and expired Canadian government-issued documents (e.g., passports). 

Visitors from within Canada

Visitors from within Canada may provide expired passports but they may not provide expired provincial documents. 

Visitors from abroad

Visitors from abroad may not provide expired documents. 

Compliance and Penalties

Existing enforcement provisions under the ROA apply to the requirement to provide proof of full vaccination status and proof of identification requirements, as well as charges and fines for individuals and corporations for non-compliance. 

Bottom Line for Employers

Businesses and organizations to which the new proof of vaccination requirements apply should familiarize themselves with section 2.1 of Regulation 364/20 as well as the guidance documents.  Furthermore, prior to September 22, 2021, when the requirement to provide proof of full vaccination and identification commences, such businesses and organizations should establish the necessary processes and provide training to those who will implement them. As some individuals who are not permitted to enter may engage in harassment, threaten violence, or engage in violence, we also encourage the development of a security plan, which should include contacting law enforcement.