On August 17, 2021, Ontario's Chief Medical Officer of Health issued a Directive mandating COVID-19 vaccination policies for high-risk settings [PDF] (the "Directive"). The Directive was the 6th directive issued to health care providers and entities pursuant to section 77.7(1) of the Health Protection and Promotion Act (Ontario) (the "HPPA"). Under the Directive:

(the "Covered Organizations"), are required to have a COVID-19 vaccination policy ("Vaccination Policy") for employees, staff, contractors, students and volunteers ("Affected Individuals") that meets the requirements of the Directive (as summarized below), by September 7, 2021.

Pursuant to section 77.7(1) of the HPPA, the Chief Medical Officer of Health has the authority to issue a directive to any heath care provider or health care entity "respecting precautions and procedures to be followed to protect the health of persons anywhere in Ontario" where the Chief Medical Officer is of the opinion "that there exists or there may exist an immediate risk to the health of persons anywhere in Ontario". In issuing the Directive, Dr. Kieran Moore, the Chief Medical Officer of Heath, had regard to the "prevalence of the Delta variant of concern globally and within Ontario" and "the immediate risk to patients within hospitals and home and community care settings who are more vulnerable and medically complex than the general population, and therefore more susceptible to infection and severe outcomes from COVID-19".4

Required Precautions and Procedures

Covered Organizations must establish, implement, and ensure compliance with a Vaccination Policy that requires Affected Individuals to provide one of the following:

  1. evidence of full vaccination against COVID-19 ("Option 1");
  2. written evidence of a medical reason for not being fully vaccinated against COVID-19, provided by a physician or registered nurse in the extended class ("Option 2");5 or
  3. evidence of completion of an educational session regarding the benefits of COVID-19 vaccination (which session has been approved by the Covered Organization of which the individual is an employee, staff member, contractor, volunteer or student, as the case may be ("COVID Education Session")) prior to the individual declining to be vaccinated for any reason other than a medical reason (i.e. Option 2). In order for the COVID Education Session to be approved for this purpose, it is required to cover the following topics:

(i) how COVID-19 vaccines work;

(ii) vaccine safety related to the development of COVID-19 vaccines;

(iii) the benefits of being vaccinated against COVID-19;

(iv) risks of not being vaccinated against COVID-19; and

(v) possible side effects of the COVID-19 vaccination,

("Option 3").

Covered Organizations may decide to remove Option 3 and instead require all Affected Individuals to provide the evidence required by Option 1 or 2. If the Covered Organization elects to do so, it must make a COVID Education Session available to all Affected Individuals.

Each Covered Organization's Vaccination Policy must also require Affected Individuals who do not provide proof of full vaccination against COVID-19 (i.e. Option 1), but instead rely on Options 2 or 3 (if available), to have regular antigen testing point of care testing for COVID-19 and provide evidence to the Covered Organization of a negative result.6 While the frequency of such testing may be determined by the Covered Organization, it is required to be at least once every seven days.

Each Covered Organization must track and report on the implementation of their Vaccination Policy. This includes documentation of the following statistical information:

  • the number of Affected Individuals that satisfied the requirements of the Vaccination Policy via each of Option 1 (full vaccination), Option 2 (medical evidence regarding non-vaccination) and Option 3 (completion of COVID Education Session) (if available); and
  • the total number of the Affected Individuals to whom the Directive applies at the Covered Organization.

The Covered Organization must disclose the above statistical information, as well as any additional details in respect of such information, to the Ontario Government (who may, in turn, make such information available to the public) upon request. Notably, the statistical information that is to be collected, maintained and disclosed by Covered Organizations must be non-identifiable – such that the Covered Organization will not be required (or permitted) to disclose any personal information in order to comply with the Directive.

As noted above, each Covered Organization must have their Vaccination Policy in effect no later than September 7, 2021. Significantly, where the Covered Organization is a public hospital, its Vaccination Policy will extend to all businesses or entities operating on its hospital site(s).

Next Steps

Covered Organizations should review the Directive closely and develop and implement compliant Vaccination Policies by September 7, 2021. In doing so, Covered Organizations are reminded that they must continue to comply with their other legal obligations, including the applicable provisions of Ontario's Occupational Health and Safety Act and its Regulations. Fasken would be pleased to assist Covered Organizations in their development of Vaccination Policies that are compliant with the Directive and fulfill other legal obligations applicable to the organization.

Footnotes

1 With respect to their provision of community services to which the Home Care and Community Services Act, 1994 applies.

2 Where such LHINs are operating as Home and Community Care Support Services with respect to the provision of community services and long-term care placement services.

3 With respect to paramedics.

4 Directive, p. 1.

5 Such document must also establish the effective period during which the medical reason for non-vaccination will continue.

6 The Affected Individual must provide evidence of the negative test result in a manner determined by the Covered Organization. The manner must, however, permit the Covered Organization to confirm the negative result.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.