Ontario Announces End of Mask Mandates and Vaccination Policy Requirements, Along with Long-Term Approach for Lifting Remaining COVID-Related Restrictions

On March 9, 2022, Ontario’s Chief Medical Officer of Health (“CMOH”) announced that mask mandates for most Ontario businesses and organizations will end March 21, 2022, in addition to the province’s new long-term approach for lifting COVID-19 related restrictions, which includes removing the requirement for childcare centres and certain other businesses and organizations to have workplace COVID-19 vaccination policies on March 14, 2022.

The details on this long-term approach are outlined in the Ontario’s Ministry of Health “Living with and Managing COVID-19—March 9, 2022” Briefing (the “Briefing”), which sets out the provincial government’s timeline for gradually revoking the COVID-related Directives that were previously issued by the CMOH, and for lifting all remaining COVID-19 public health measures.

Under long-term approach, all CMOH Directives and remaining COVID-19 public health measures will be lifted by April 27, 2022. As the Directives are lifted, the government will release an “operational guidance or recommendations” via the CMOH and relevant ministries. That said, the government has indicated that individual business and organizations will continue to have the authority to maintain the COVID-19 health and safety measures they currently have in place, including COVID-19 vaccination policies.

A summary of the key aspects of the Briefing for Ontario employers to be aware of is set out below.

March 14

As of March 14, 2022, the Ontario government has lifted the requirement for employers operating certain high-risk settings to have COVID-19 vaccination policies, such as hospitals, long-term care homes, home and community care service providers, and licensed childcare settings, by revoking:

• Directive 6, for hospitals, home and community care service providers, and ambulance services;
• the letters of instruction to the Ministry of Children, Community and Social Services, the Ministry of Seniors and Accessibility, and the Ministry of Education; and
• the directive issued by the Minister of Long-Term Care on immunization policies.

Although the legal requirement for these employers to have vaccination policies has come to an end, the MOH has indicated that employers operating high-risk settings can keep such policies in place if they choose to do so. The province will also continue providing rapid antigen tests to eligible businesses and organizations.

March 21

Legally required masking in most settings, including schools, will be lifted as of March 21, 2022. However, mask mandates will remain in place for certain high-risk settings such as public transit, congregate care settings, and health-care settings. Notably, almost all other measures in schools will also be removed, including cohorting and daily on-site screening, but excluding enhanced cleaning, optimization of air quality, ventilation, and absence reporting measures, which will remain in place.

Additionally, all other COVID-19 related regulatory requirements for businesses, such as passive screening and safety plan requirements, will also be removed March 21, 2022.

Although childcare settings do not constitute “congregate care settings” which will continue to be subject to masking mandates, it is presently unclear whether the Ministry of Education will maintain masking mandates and/or certain other COVID-19 related requirements for childcare settings pursuant to its authority under the Child Care and Early Years Act [CCEYA].

More broadly and in any event, individuals will have the option to continue wearing masks after the province lifts the masking requirement, and the province will continue to provide personal protective equipment (PPE) to schools and businesses.

March 28

The Reopening Ontario Act [ROA] is currently set to expire on March 28, 2022; however, there will be a final extension of the province’s emergency order under the ROA for an additional 30 days. This will allow certain measures to remain in place until April 27, 2022, as discussed below.

April 27

As of April 27, 2022, all remaining masking requirements, emergency orders under the ROA, and Directives 1, 2.1, 3, 4 and 5 will be lifted. In place of those Directives, the CMOH will issue guidance and recommendations on Infection Prevention and Control (IPAC), which will include guidance on the use of PPE.

Nonetheless, the province will continue to provide rapid-antigen tests and PPE to support health and safety in various settings.

Takeaways

After a very long and challenging two years, there finally appears to be light at the end of the tunnel for Ontario employers now that the government has announced its plan to end all COVID-19 related restrictions in the province by April 27, 2022. Similarly, municipalities such as Toronto, which implemented masking mandates that affect employers located in their areas, have begun setting dates to end such mandates on March 21, 2022, in accordance with the provincial mandate ending, while others, such as Peel Region, have been setting dates to consider ending the restrictions shortly thereafter. With provincial public health restrictions ending, employers would be well advised to carefully consider whether they individually need to maintain certain requirements they have put into place, despite the lack of broader mandates, to ensure that they are taking all reasonable precautions to protect health and safety in the workplace.

For example, employers operating settings that are currently subject to masking mandates should consider whether they will continue to require masking as soon as possible, in advance of these mandates being lifted. In doing so, such employers should be mindful of their broad duty to take all reasonable precautions for the health and safety of their workers, as well as the practical challenges that may arise if anti-mask customers/employees become emboldened to challenge mandatory masking once it is no longer legally required.

Similarly, childcare centres and other settings which are no longer be explicitly required by law to have COVID-19 vaccination policies as of March 14, 2022 should carefully consider whether it is necessary to maintain such policies to ensure health and safety in light of how many of their workers are vaccinated and the level of COVID-related risks in their particular workplace.  In deciding whether to maintain their COVID-19 vaccination policies beyond March 14, 2022, childcare centres that operate in premises owned by the Toronto District School Board (“TDSB”) should consider that the TDSB has revoked its vaccination policy, meaning that the TDSB-imposed requirements on childcares operating in TDSB schools are no longer in place. As such, childcares that wish to maintain the restrictions they put in place as a result of the TDSB requirements will have to craft a thoughtful communication strategy as to why the requirements are still necessary in their particular circumstances.

Finally, given that the CMOH and relevant Ontario ministries will release operational guidance and recommendations as COVID-19 public health measures are lifted, Ontario employers might consider waiting for this guidance to be released before removing COVID-related health and safety measures in their workplace that are no longer legally required.

We will continue to monitor for news related to the province’s plan to lift COVID-19 public health measures and will promptly post about any updates relevant to employers.