As workforces in Ontario continue their transition back to the physical workplace, public health units in Ontario have started imposing an additional requirement on employers: mandatory COVID-19 vaccination policies.

On August 24, 2021, the Ontario Government amended Ontario Regulation 364/20: Rules for Areas at Step 3 and at the Roadmap Exit Step¹ (“O. Reg. 364/20”) to introduce a strict obligation on “persons responsible for a business or organization that is open” to comply with any advice, recommendations and instructions requiring the business or organization to establish, implement and ensure compliance with a COVID-19 vaccination policy. This obligation is triggered in two circumstances:

1. The advice, recommendation or instruction is issued by Ontario’s Chief Medical Officer of Health (CMOH); or
2. The advice, recommendation or instruction is issued by a medical officer of health after consultation with the CMOH.

Prior to these amendments, at least one regional medical officer of health had already issued a recommendation that businesses in their region institute a vaccination policy; however, there was an open question as to whether these “recommendations” were legally binding with respect to vaccine policies. The recent amendments resolve this confusion as it is now clear that a regional medical officer of health can mandate that businesses implement a vaccination policy provided there is consultation with the CMOH.

Some regional medical officers of health have since confirmed that the required consultation with the CMOH has occurred, thereby triggering the obligation to develop a workplace vaccination policy. For example, on October 7, 2021, the City of Hamilton’s Medical Officer of Health published a letter strongly recommending that local employers “address the need for a workplace vaccination policy” and published a comprehensive guideline on how to establish a COVID-19 workplace vaccination policy. The first paragraph of the letter expressly provides that the recommendation was made pursuant to O. Reg. 364/20 following consultation with the CMOH.

More recently, on October 25, 2021 Halton’s Medical Officer of Health updated her Letter of Instruction to persons responsible for a workplace in Halton Region so that it expressly confirms that the instructions contained were issued following consultation with the CMOH. The Letter of Instruction requires all workplaces “with 100 or more workers physically present at the workplace (including those working in the community)” to establish, implement and ensure compliance with a COVID-19 workplace vaccination policy that meets the Halton Region’s Recommendations for Establishing a Workplace Vaccination Policy. Significantly, “worker” is defined broadly in the Letter of Instruction to include employees, individuals hired through third party agencies, contractors, vendors, volunteers, students “and any other such persons” present at the workplace.

What does this mean for employers?

As COVID-19 case numbers continue to fluctuate and highly contagious variants remain a concern, it is expected that public health units that have issued workplace vaccination policy recommendations will take the necessary next step of consulting with the CMOH to ensure their recommendations are legally binding. It is therefore critically important for employers to monitor the changing guidance and recommendations of their local public health officials in the public health unit(s) where the employer operates.

Employers with operations in public health units that have issued binding obligations to introduce vaccination policy recommendation will need to ensure they have a policy in place that meets the prescribed requirements set out in the local public health unit’s guidelines or recommendations. Failure to comply with the requirements of O. Reg. 364/20 could result in significant penalties; the maximum fine against a director or officer of a corporation is CA$500,000 and a term of imprisonment of up to one year, and the maximum fine against a corporation is CA$10 million. Fortunately, most public health units have published guidelines or toolkits to assist employers with developing their workplace vaccination policies.

If the medical officer of health for your public health unit has recommended workplace vaccination policies but no consultation has occurred yet with the CMOH, make sure to keep a watchful eye out for any announcements or updated recommendations that reference consultation with the CMOH.

Should employers have any questions about creating or implementing a vaccination policy, please feel free to contact a member of our Dentons Employment and Labour group.

The authors would like to thank articling student Megan Campbell for her assistance with this article.

¹ O. Reg. 364:20: Rules for Areas at Step 3 and at the Roadmap Exit Step, under the Reopening Ontario (A Flexible Response to COVID-19 Act, 2020, S.O. 2020, c. 17.