On October 1, 2021, the Ontario government announced that all long-term care home workers in the province will be legally required to be fully vaccinated against COVID-19 by November 15, 2021 in order to attend work, unless they provide proof of a valid medical exemption. The same day, Ontario’s Minister of Long-Term Care issued a Directive under section 174.1 of the Long-Term Care Homes Act, 2007 to implement this mandatory vaccination requirement which applies to all in-home staff, support workers, student placements, and volunteers of Ontario long-term care homes, among other requirements.
Notably, this is the first instance of provincially-regulated employees in Ontario being legally required to be vaccinated against COVID-19 in order to attend work, further signifying the increasing trend towards mandatory vaccination requirements for workplaces (please read our previous blog for more on this trend). Details on this new mandatory vaccination requirement and related requirements are set out below.
COVID-19 Vaccination Requirements
By no later than November 15, 2021, Ontario long-term care homes must ensure that all in-home staff, support workers, placement students, and volunteers (“Workers”) provide proof of full vaccination against COVID-19 or proof of a medical exemption in order to attend the workplace (subject to certain limited exceptions). To be considered fully vaccinated for the purposes of this requirement, Workers must have received one of the following:
- a full series of a COVID-19 vaccine authorized by Health Canada, or a combination of vaccines approved by Health Canada;
- one or two doses of a COVID-19 vaccine not authorized by Health Canada, followed by one dose of a COVID-19 mRNA vaccine authorized by Health Canada; or
- three doses of a COVID-19 vaccine not authorized by Health Canada.
Workers who cannot be vaccinated against COVID-19 for medical reasons must provide written proof of this issued by a physician or registered nurse in the extended class which sets out the effective time period for the medical exemption.
Workers who begin their employment, engagement, student placement or volunteering on or after October 1, 2021 must meet the above requirements before they begin working or volunteering in an Ontario long-term care home.
All Ontario long-term care homes must also ensure that information about these COVID-19 vaccination requirements is communicated to staff, support workers, student placements, volunteers, residents and their substitute-decision makers.
Under the Directive, all Ontario long-term care homes must also make an education session available to their Workers which must include the following, at minimum:
- how COVID-19 vaccines work;
- vaccine safety related to the development of COVID-19 vaccines;
- the benefits of vaccination against COVID-19;
- the risks of not being vaccinated against COVID-19; and
- possible side effects of COVID-19 vaccination.
Additionally, the Directive requires all Ontario long-term care homes to collect, maintain, and disclose certain statistical information to the Ministry of Long-Term Care, including but not limited to the total number of their Workers who have submitted proof of vaccination or proof of a medical exemption.
Takeaways for Employers
Beyond the obvious impact that these new requirements have upon employers who operate long-term care homes in Ontario, the new mandatory vaccination requirement also has significant implications for all Ontario employers. As noted above, this is the first instance of provincially-regulated employees in Ontario being legally required to be vaccinated against COVID-19 to attend work. As such, this new development further entrenches the growing trend towards mandatory vaccination requirements for workplaces.
Additionally, given that this mandatory vaccination requirement is prescribed by law, it could potentially be subject to a constitutional challenge by those who would argue that mandatory vaccination requirements are contrary to the Canadian Charter of Rights and Freedoms (the “Charter”). Given the current legal uncertainty regarding the enforceability of mandatory vaccination requirements, whether prescribed by law or implemented through workplace policies, such a challenge could provide valuable guidance for employers and help resolve this uncertainty. That said, it remains to be seen whether this new mandatory vaccination requirement will be subject to a Charter challenge.
As always, we will continue to monitor all updates related to COVID-19 that are relevant for employers and promptly post about important new developments on this Resource Centre to keep you In the Know.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.