Mandatory COVID-19 Vaccination Policies - update as of August 2021

In recent weeks, federal, provincial, and municipal government authorities have taken significant steps to mandate vaccination against COVID-19 in certain sectors and workplaces. These developments follow on the heels of the increasing severity of the Delta variant of COVID-19, and the strong push towards vaccination of all individuals by public health authorities.

In this blog post, we outline some of the workplaces that may be covered by government directives on vaccination. Employers and employees who are unsure if their workplace will be subject to these requirements are encouraged to seek legal advice.

Federally Regulated Workplaces:

On August 13, 2021, the federal government announced that federally regulated employers will be required to adopt vaccination policies for their workplaces. This includes:

• By the end of September 2021, all federal public servants will be required to be vaccinated;
• By the end of October 2021, all employees in the federally regulated air, rail and marine sectors will be required to be vaccinated; and
• By a later date, the government expects that Crown corporations and other employers in the federally regulated sector will also require vaccination for their employees.

Federally regulated industries include the following:

• Air transportation, including airlines, airports, aerodromes and aircraft operations;
• Banks, including authorized foreign banks;
• Grain elevators, feed and seed mills, feed warehouses and grain-seed cleaning plants;
• First Nations band councils (including certain community services on reserve);
• Most federal Crown corporations, for example, Canada Post Corporation;
• Port services, marine shipping, ferries, tunnels, canals, bridges and pipelines (oil and gas) that cross international or provincial borders;
• Radio and television broadcasting;
• Railways that cross provincial or international borders and some short-line railways;
• Road transportation services, including trucks and buses, that cross provincial or international borders;
• Telecommunications, such as, telephone, Internet, telegraph and cable systems;
• Uranium mining and processing and atomic energy; and
• Any business that is vital, essential or integral to the operation of one of the above activities.

Notably, the federal government did not indicate that the mandatory vaccination requirements would only apply to federally regulated employees in high risk or public facing jobs. Rather, it appears that all federally regulated employers, regardless of the line of work, will ultimately be expected to implement a mandatory vaccination policy. The federal government further requires that such policies should provide accommodation or alternative measures, such as testing or screening, for those who are unable to be vaccinated.

Provincially Regulated Workplaces - Ontario:

In contrast, the Ontario government has not yet issued any directives obliging all provincially regulated employers to require vaccination. Rather, it has taken a sector specific approach. Certain high-risk settings will be required to adopt a vaccination policy for its workers that requires proof of one of three things:

• Full vaccination against COVID-19;
• A medical reason for not being vaccinated against COVID-19; or
• Completion of a COVID-19 vaccination educational session.

Individuals who do not provide proof of full vaccination against COVID-19 will be required to undertake regular antigen testing.

Currently, the following sectors have been classified as high risk for the purpose of implementing the vaccine policy:

• Public hospitals;
• Long-term care homes;
• Home and community care service provider; and
• Ambulance services with respect to paramedics.

It is expected that vaccination policies will also be mandated for the following workplaces:

• Post-secondary institutions;
• Licenced retirement homes;
• Women's shelters; and
• Congregate group homes and day programs for adults with development disabilities, children's treatment centres and other services for children with special needs, and licensed children's residential settings.

Municipal Government - Toronto:

The City of Toronto has issued a mandate in line with the federal government's philosophy. The municipality requires all City employees to by double-vaccinated:

• By September 13, 2021, City employees will be required to disclose and provide proof of vaccination status. Those who have not been vaccinated or who do not disclose their vaccination status by September 13, 2021, will be required to attend mandatory education on the benefits of vaccination, and subsequently provide proof of first dose by September 30, 2021; and
• By October 30, 2021, all City employees will have to have their first dose, save for a human rights related exemption.

Although not legally binding, Toronto's Medical Officer of Health has strongly recommended that all employers in the city implement a workplace vaccination policy, and the City of Toronto has published guidance on developing a workplace vaccination policy, accessible here.

Takeaways:

Given the recent government directives, and the scientific evidence disclosing the serious nature of the new Delta variant, it is critical that employers consider how to deal with COVID-19 vaccination in their workplace.

If subject to one of the government orders on vaccination, employers should ensure they develop a vaccination policy in accordance with the directives and all other applicable legislation, including human rights, health and safety, and privacy laws. Employers who are not yet subject to a government mandate should nevertheless turn their minds to whether a vaccination policy, either mandatory or voluntary, would be appropriate for their workplace.

Lee Workplace Law would be happy to assist you in developing a plan for tackling COVID-19 vaccination in your workplace.