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Bulletin | The HR Space

Mandatory Vaccination Policies are on the Rise in Canada

Fasken
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Overview

Labour, Employment & Human Rights Bulletin | HR Space

The topic of mandatory vaccination has been front of mind for Canadian employers since COVID-19 vaccines became a reality in late 2020. In recent weeks, there have been a flurry of announcements, both in the public and private sectors, of employers unveiling mandatory vaccination policies for those returning to the office, in light of evolving data around the transmissibility of the Delta variant. In several instances, details of these policies have not yet been released.

Federally-Mandated Vaccination Policies

On August 13, 2021, the Government of Canada announced that it will require all federal public servants to be fully vaccinated as early as by the end of September 2021. In addition, the Government of Canada also announced its intention to require federally-regulated employees in the air, rail and marine sectors to be fully vaccinated by no later than the end of October 2021. The Government of Canada also expects that Crown corporations and other federally-regulated employers will require mandatory vaccination of employees.

Ontario Government Mandates Vaccination Policies

On August 17, 2021, the Ontario Government announced[1] that it will mandate COVID-19 vaccination policies for multiple sectors in Ontario including hospitals, school and child care settings and other high-risk settings.

Hospitals and Other Health Care Settings

Ontario’s Chief Medical Officer of Health, Dr. Kieran Moore, issued Directive #6[2] pursuant to the Health Protection and Promotion Act mandating hospitals, ambulance services and home and community care service providers to mandate a COVID-19 vaccination policy for employees, staff, contractors, students and volunteers. These policies must be effective no later than September 7, 2021, and at a minimum will require affected individuals to provide proof of one of the following:

  • full vaccination against COVID-19;
  • a medical reason for not being vaccinated against COVID-19; or
  • completion of a COVID-19 vaccination educational session prior to declining vaccination for any reason other than a medical reason.

Individuals who do not provide proof of full vaccination against COVID-19 will be required to undertake regular COVID-19 testing and demonstrate a negative result, at least once every seven days. Employers in these sectors will be required to track and report on the implementation of these policies to the Ontario Government. This is similar to the requirements currently in place for long-term care homes.

On August 18, 2021, the Ministry of Health and Long-Term Care released Directive #6: Resource Guide to support the implementation of mandatory vaccination policies according to the Directive.

Schools, Child Care and Other High-Risk Settings

Ontario’s Ministry of Education has announced that it intends to introduce a vaccination disclosure policy for employees of all publicly-funded school boards, private schools, and licensed child care settings for the 2021-2022 school year, with rapid antigen testing requirements for staff who are not immunized against COVID-19.

The Ontario Government has also announced its intention to implement vaccination policies in other high-risk settings, including the following:

  • 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 services for children with special needs, and licensed children’s residential settings.

Mandatory Vaccination Policies on the Rise

On August 19, 2021, the City of Toronto announced[3] that it will require all City of Toronto employees to be fully vaccinated against COVID-19 by October 30, 2021, unless legally entitled to accommodation. The City of Vaughan has announced a similar intention.

On August 20, 2021, Toronto’s Medical Officer of Health, Dr. Eileen de Villa, announced[4] a “strong recommendation” that local employers institute a workplace vaccination policy to protect their employees and the public from COVID-19. At a minimum, these workplace vaccination policies should require:

  • that workers provide proof of their vaccination status, as approved by Health Canada or the World Health Organization;
  • that unvaccinated employees provide proof of a medical reason from a physician or nurse practitioner, including whether the reason is time-limited or permanent; and
  • that unvaccinated workers complete a vaccination education course on the risks of being unvaccinated in the workplace.

Outside of government, several public and private sector organizations have also announced they will implement some form of mandatory vaccination policies for their employees returning to the office, including the Toronto Transit Commission and all five of Canada’s big banks.

Considerations for Businesses

Employers who are directly impacted by the recent announcements and/or directives will need to develop and revise their policies to ensure compliance. Businesses operating in other identified settings will want to proactively consider vaccine mandates and be prepared to act quickly once details of upcoming requirements are released.

Employers should bear in mind that there are risks associated with mandating a mandatory vaccination policy. For employers who decide to implement such a policy, we recommend that consideration be given to the availability and efficacy of less intrusive alternatives, ensuring that the collection, use and disclosure of vaccine-related information complies with statutory and common law privacy rights,  and accommodating employees who are unable to be vaccinated based on a protected ground(s).

We will continue to provide updates as developments occur. If you have any questions about this topic, or would like assistance with developing and/or reviewing pandemic plans, please contact the author or your regular Fasken lawyer.

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