Williams HR Law LLP


September 2, 2021

In a major development for Ontario employers, all Ontario employers are now required to follow any advice, recommendations, or instructions from medical officers of health with respect to vaccination policies. As a result, employers in certain public health regions such as Toronto and Hamilton must now implement and enforce vaccination policies with certain prescribed elements, pursuant to recent recommendations made by the medical officers of health for those regions.

However, as further discussed below, most employers who are now required to have vaccination policies do not necessarily need to make vaccinations “mandatory” for all employees, and employers should exercise caution before doing so in order to avoid legal exposures.

Amendments to the Rules for Areas at Step 3 and the “Roadmap Exit Step”

On August 24, 2021, Ontario introduced new requirements by amending O. Reg. 364/20: Rules for Areas at Step 3 and at the Roadmap Exit Step (the “Regulation”) through O. Reg. 577/21. Under these amendments, all Ontario employers must comply with any advice, recommendations, and instructions issued by a medical officer of health requiring businesses and organizations to establish, implement, and ensure compliance with COVID-19 vaccination policies during Step 3 and the “Roadmap Exit Step”. Further, the amended Regulation requires that such policies include any precautions and procedures that a medical officer of health advises, recommends, or instructs employers to include.

Notably, given that all of Ontario is currently in Step 3 of the Roadmap to Reopen, these new requirements apply to all Ontario employers, in addition to all other existing rules for Step 3 (please see our previous post for more details on these rules).

Employers in Certain Public Health Regions Must Now Implement and Enforce Vaccination Policies

The medical officers of health for certain Ontario public health regions have already recommended that employers in those regions implement COVID-19 vaccination policies, which must include prescribed elements, such as Toronto and Hamilton. In light of the amended Regulation discussed above, these recommendations are actually legal requirements.

For example, on August 20, 2021 Toronto’s Medical Officer of Health, Dr. Eileen de Villa, released a statement in which she strongly recommended that all Toronto employers institute COVID-19 workplace vaccination policies. Further, she strongly recommended that such policies require the following, at minimum:

  • Workers must provide proof of any COVID-19 vaccinations that they have received which are approved by Health Canada or the World Health Organization;
  • Unvaccinated employees must provide written proof of any medical reasons that prevent them from being vaccinated, which must be from a physician or nurse practitioner; and
  • Unvaccinated workers must complete an educational course regarding the risks of not being vaccinated in the workplace.

Moreover, Toronto employers’ vaccination policies must also explain the purpose of the policy, the particular steps workers need to take, such as providing proof of vaccination status or an exemption for medical reasons, and timelines.

Toronto employers also need to:

  • determine how their workers’ personal information related to vaccinations will be collected and protected in accordance with any applicable privacy legislation;
  • explain in their vaccination policy what the level of risk is related to COVID-19 in their particular workplace; and
  • use COVID-19 testing to reduce the spread of COVID-19 in the workplace.

To aid Toronto employers in developing their COVID-19 vaccination policies, Toronto Public Health has released a toolkit which provides additional information on the key components to be included in vaccination policies. These key components include, but are not limited to:

  • what should be included in educational courses for non-vaccinated workers; and
  • alternative options for workers who do not get vaccinated for reasons related to protected grounds under human rights legislation, such as the use of additional PPE, frequent COVID-19 testing, worker relocation, and modified duties.

Takeaways for Employers

Employers in public health regions in which vaccination policies are now required and who have yet to develop and implement such a policy should do so as soon as possible, and enforce it accordingly. This is crucial for such employers to ensure that they are in compliance with their legal obligations. Such employers should carefully review the requirements for what must be included in vaccination policies in their public health region and ensure that their policy includes all required elements.

Moreover, employers located in public health regions where vaccination policies are not mandatory yet should still strongly consider developing and implementing a COVID-19 vaccination policy sooner rather than later. This is because it is very likely that many other public health regions in Ontario will begin requiring employers to have such policies soon, in light of the fourth wave of the pandemic and the proliferation of the Delta variant.

It is crucial to note that the new requirements discussed above do not mean that employers must require all employees to be vaccinated as a term of continued employment, or that all unvaccinated employees are prohibited from attending work. Currently, at the time of writing, there are no public health regions in Ontario where vaccinations are mandatory for all workers (although mandatory vaccination requirements will soon come into effect for workplaces in certain sectors, as discussed in our recent blog).

Employers should strongly consider seeking legal advice when developing a COVID-19 vaccination policy, particularly if they are considering making vaccination “mandatory” where mandatory vaccination is not legally required for their workplace. This is because there are a myriad of legal considerations and potential pitfalls for employers when developing and implementing COVID-19 vaccination policies, as discussed in our recent blog.

Finally, employers should continue to monitor the COVID-19 related guidelines and requirements and make appropriate workplace adjustments as necessary, given that there has been nearly constant change throughout the pandemic.

For any questions or assistance related to drafting or implementing workplace vaccination policies, please contact our lawyers.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.