The Government of Canada has announced that COVID-19 vaccinations will be mandatory across the federal public service, including for:
- contractors and subcontractors working in federal government workplaces where federal government employees are present; and
- all persons accessing premises leased by Public Services and Procurement Canada (“PSPC”), including landlord personnel (e.g. employees, contractors, and subcontractors).
Those who do not submit the required certification or attestation may be subject to “further measures”, which, for contractors and subcontractors, can include contract termination. This creates a significant concern for contractors who are supplying only goods to the federal government (but have received a certification from their contracting authority) or those who, having reviewed their contracts, cannot locate a provision that enables the government to unilaterally impose additional certification requirements, “further measures”, or additional default rights.
Meeting the Requirements
All personnel affected by the requirement must be fully vaccinated by November 15, 2021.
Current contractors, subcontractors and PSPC landlords are required to provide certifications of compliance to the government by October 29, 2021, confirming that their affected personnel will be fully vaccinated by the deadline. For future contracts and leases, contractors and landlords will be required to submit an attestation of vaccination.
As of October 15, 2021, bidders for contracts are required to certify that they meet the vaccine requirement as a condition of their bid.
Monitoring of compliance with the vaccination requirement will be done by the government client organization.
Suppliers who fail to provide the required certification will note that the current version of the certification (as of the date of publication of this Bulletin) provides that contractors who are subsequently discovered to have submitted an untrue certification or fail to provide additional information as requested, may be subject to measures up to and including contract termination.
Federal government contractors should closely review their contracts to determine whether their contract is an exempt contract. If their contract appears to be covered, contractors should review their contracts to determine the contractual process by which the federal government is able to seek additional certification requirements and/or impose additional default termination rights. Contractors should also seek an explanation from their contracting authority as to what the reference to “further measures” entails within the bounds of their particular contract.
Meaning of “Fully Vaccinated”
For all affected personnel, an individual is deemed “fully vaccinated” if they have received:
- two doses of any combination of Moderna, Pfizer or AstraZeneca (including CoviShield); or
- one dose of Janssen (Johnson & Johnson).
The government recognizes that some personnel may not be able to get fully vaccinated due to:
- a certified medical contraindication;
- religious grounds; or
- other prohibited grounds of discrimination as defined in applicable human rights legislation.
In these cases, contractors and PSPC landlords are expected to inform the responsible contracting authority or property manager as soon as possible of:
- the number of such personnel;
- the impacted work locations; and
- the steps the contractor or landlord propose to undertake to mitigate any associated risks (such as regular rapid testing).
When notifying the contracting authority or property manager of personnel requesting exemptions, personal information such as specifics about medical contraindications or disability should not be shared.
PSPC has advised that the vaccination requirement does not apply to:
- contracts that are solely for the provision of goods;
- contracts where services are solely performed in non-federal government workplaces;
- situations where federal employees must enter contract facilities (e.g. to conduct compliance audits or security verifications); and
- contracted personnel who will only access common areas of buildings that are open to the public (e.g. a lobby).
Specific Requirements for PSPC Landlords
PSPC landlords with existing leases must submit an attestation form by October 29, 2021, certifying that any personnel accessing PSPC premises (e.g. employees, contractors, and subcontractors) will be fully vaccinated by November 15, 2021. Similarly, as of October 29, 2021 all new leases will require an attestation of vaccination as a lease obligation.
PSPC landlords will be responsible for monitoring their personnel’s adherence to the vaccination requirement and PSPC will ensure that notices to that effect are posted in PSPC premises. PSPC landlords who fail to provide the required attestation, or who are subsequently discovered to have submitted a false attestation, may be subject to additional measures.
For further information on Workplace Vaccination Policies please see our Fasken bulletin, "Creating a Workplace Mandatory Vaccination Policy".