Sunday, 12 September 2021

Ottawa Businesses and Organizations Legally Required to Establish COVID-19 Vaccination Policy

Is my business legally required to have a mandatory COVID-19 vaccination policy?

In Ontario, the answer unfortunately depends on where you are located. Let me explain.

The Law

As at the date I am writing this post, September 12, 2021, Ontario is in “Step 3” of its COVID-19 economic recovery plan.

Ontario Regulation 364/20: “RULES FOR AREAS AT STEP 3 AND AT THE ROADMAP EXIT STEP” includes the following among the “General Rules at Step 3:”

The person responsible for a business or organization that is open shall operate the business or organization in compliance with any advice, recommendations and instructions issued by the Office of the Chief Medical Officer of Health, or by a medical officer of health [as defined in subsection 1 (1) of the Health Protection and Promotion Act] after consultation with the Office of the Chief Medical Officer of Health,

(a) requiring the business or organization to establish, implement and ensure compliance with a COVID-19 vaccination policy; or

(b) setting out the precautions and procedures that the business or organization must include in its COVID-19 vaccination policy.

Source: O. Reg. 364/20, as amended by O. Reg. 577/21, Schedule 1, ss. 2(2.1), (2.2).

Making Sense of the Law

Let’s unpack some of the words in the regulation.

The first question one needs to answer is whether either Office of the Chief Medical Officer of Health or a medical officer of health has done one or more of the following:

  1. given any advice,
  2. made any recommendations, or
  3. provided any instructions

requiring the business or organization to establish a COVID-19 vaccination policy.

The answer to that question is "Yes." Some local medical officers of health have already “made recommendations.”

For example, Toronto’s Medical Officer of Health, Dr. Eileen de Villa, has “strongly recommended” local employers institute a workplace vaccination policy to protect their employees and the public from COVID-19. See: News Release of August 20, 2021.

Similarly, Ottawa Public Health has “strongly recommended” that all Ottawa employers implement workplace vaccination policies to reduce the risk of COVID-19 transmission. See Announcement of September 2, 2021.

Both Toronto and Ottawa have also “provided instructions” on how businesses and organizations can prepare a vaccination policy by providing sample documents. See, for example:

Adding all that together, the legal conclusion is that businesses must establish a workplace vaccination policy.

Commentary

Does the fact that the law requires a business or organization to establish a workplace vaccination policy also mean that those businesses or organizations must mandate that their employees be vaccinated in order to come to work?

My answer is that neither the law nor the recommendations go that far- at least, not yet. So far, both Toronto and Ottawa’s medical officers of health have only recommended that businesses have a policy; they have not yet prescribed the content of that policy.

So, while many businesses and organization have prescribed mandatory vaccination as part of their policies, I am yet to see a clear, statutory direction that they must.

And while many have pointed to the general obligation on employers in Ontario’s Occupational Health and Safety Act to protect the health and safety of their employees as a statutory basis for requiring employers to have a mandatory vaccination policy, I am unaware of any judicial interpretation of that statute arriving at that conclusion.

Takeaways for Employers

The takeaway for employers is that if you are located in either Toronto or Ottawa, or any other jurisdiction in which a medical officer of health has made recommendations or provided advice about implementing a COVID-19 vaccination policy, then your business or organization must establish such a policy. The content of that policy remains somewhat in the employer’s discretion, but advice should be taken before drafting or implementing any policy. Both the content of the policy and the way by which it is announced to staff should be considered.

If you are looking for advice with respect to your legal obligations, contact the experienced employment lawyers at Ottawa’s Kelly Santini LLP.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

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