Recent directives and recommendations coincide with ramp-up of employer policies
On July 16, 2021, we wrote a post outlining what employers should consider before implementing mandatory vaccination in their workplaces. As we noted, the question of whether or not an employer can require employees to get vaccinated will depend on a number of factors, including the need to balance health and safety with employee privacy and an employer’s duty to accommodate.
Since then, we have seen some significant advancements at the federal and provincial levels towards mandatory vaccination which may encourage more businesses to follow suit.
Government of Canada
On Aug. 13, 2021, the government of Canada announced that it would be making vaccinations mandatory for all federal employees as early as the end of September. In addition, the government confirmed that employees in the federally regulated air, rail and marine transportation sectors, as well as commercial air travelers, passengers on interprovincial trains, and passengers on large marine vessels with overnight accommodations (such as cruise ships) would also be required to be vaccinated by no later than the end of October.
The government indicated that it expects Crown corporations and other federally regulated employers to also require vaccination for their employees and also included a “call to action” for organizations outside of the federal sphere to implement their own vaccination policies in line with public health recommendations.
The news release contemplates that alternative measures, such as testing and screening, would be implemented for those employees who are unable to be vaccinated.
On Aug. 12, 2021, British Columbia’s provincial health officer announced that all long-term care and assisted living workers will be required to be vaccinated by Oct. 12, 2021. This requirement will apply not only to workers, but also to volunteers and personal service workers who must enter these facilities. In the meantime, unvaccinated workers will be subjected to regular COVID-19 testing.
In addition, the long-term care and assisted living facilities will be required to provide vaccination information to the Ministry of Health so that it can assess the risk of a potential outbreak.
On July 1, 2021, the Minister of Long-Term Care issued a directive requiring all Ontario long-term care homes to implement COVID-19 vaccination policies for staff, student placements and volunteers. On Aug. 17, 2021, the chief medical officer of health issued a new directive expanding mandatory vaccination requirements to public hospitals, home and community care service providers, Local Health Integration Networks operating as home and community care support services with respect to the provision of community services and long-term care home placement services, and paramedics.
The directive states that vaccination policies must be implemented by no later than Sept. 7, 2021 which require all employees, staff, contractors, students and volunteers to provide:
- proof of full vaccination against COVID-19; or
- written proof of a medical reason, provided by a physician or registered nurse, that sets out i) a documented medical reason for not being fully vaccinated against COVID-19, and ii) the effective time period for the medical reason; or
- proof of completing an educational session about the benefits of COVID-19 vaccination prior to declining vaccination for any reason other than a medical reason. The approved session must, at minimum address:
- how 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
- possible side effects of COVID-19 vaccination.
The directive also requires an organization’s vaccination policy to require that employees who do not provide proof of vaccination:
- submit to regular antigen point of care testing for COVID-19 and demonstrate a negative result at regular intervals (at minimum once every seven days)
- provide verification of the negative test result to the organization.
Organizations covered under this directive will also be required to collect certain information regarding vaccination in the workplace and disclose this information to the Ministry of Health upon request.
City of Toronto
On Aug. 19, 2021, the City of Toronto announced that all of its employees would be required to advise of their vaccination status, and provide proof of vaccination (if applicable), by no later than Sept. 13, 2021. Any employees who have not been vaccinated or who do not disclose their vaccination status by Sept. 13, 2021 will be required to attend mandatory education on the benefits of vaccination. These individuals will then have until Sept. 30, 2021 to provide proof that they have received the first dose of the vaccine. By Oct. 30, 2021, all employees will be required to be fully vaccinated.
As with the government of Canada, the City confirmed that it would comply with its human rights obligations with respect to accommodating employees who are unable to be vaccinated. The City noted that, as the “largest employer in Toronto” it was taking a “leadership role in making COVID-19 vaccination mandatory for its workforce”, and that agencies and corporations of the City would be encouraged to do the same.
On Aug. 20, 2021, Toronto’s medical officer of health and Toronto Public Health issued a statement strongly recommending local employers institute a workplace vaccination policy in line with that implemented by the City. Toronto Public Health is also launching a workplace toolkit including guidance on developing a workplace vaccination policy, and resources to allow Toronto businesses to apply to host an on-site vaccination clinic.
The City is also strongly recommending that organizations determine a method for attendees of gatherings of 1,000 individuals or more to demonstrate proof of their vaccination status and to follow public health measures.
We will likely see many businesses implementing mandatory vaccination policies in light of these directives and recommendations. Employers that wish to implement such policies should follow the guidelines established by government and public health authorities, including ensuring they account for employees who may have medical or religious reasons for not getting the vaccine and making it clear in their policies how they will preserve the confidentiality of employees’ personal medical information.
We continue to recommend that employers give consideration to whether requiring proof of vaccination is necessary for every employee, particularly if all or part of their team will be working remotely on a full-time basis moving forward. Employers that are not yet ready to mandate vaccines should still be encouraging all staff to get vaccinated, and may want to consider providing incentives (such as paid time off) to try and increase vaccination rates.