On Sept. 1, 2021, the Government of Ontario announced that it would require individuals to be fully vaccinated against Covid-19 and provide proof of their vaccination status with identification to enter certain public settings where the risk of transmission of the virus was high. The decision was made in consultation with the Chief Medical Officer of Health, in an effort to slow down the spread of the virus and combat the Delta variant, while encouraging people to get their shot.
The decision was also made to protect the hospital capacity and to minimize business disruptions in Ontario. The mandatory requirements came into effect on Sept. 22, 2021, under Ontario Regulation 364/20: Rules for Areas at Step 3 and at the Roadmap Exit Step under Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17 (the Regulations).
What does “fully vaccinated” mean?
A person is fully vaccinated if they have received:
- The full series of a Covid-19 vaccine authorized by Health Canada, or any combination of such vaccines; or
- 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; and
- They received their final dose of the Covid-19 vaccine at least 14 days before providing proof of being fully vaccinated.1
Where is proof of vaccination required?
Ontarians must show proof of vaccination against Covid-19 and identification to enter the following indoor settings:
- Restaurants and bars (excluding outdoor patios, as well as delivery and takeout);
- Nightclubs (including outdoor areas of the establishment);
- Meeting and event spaces, such as banquet halls and conference/convention centres;
- Facilities used for sports and fitness activities and personal fitness training, such as gyms, and fitness and recreational facilities (including waterparks) and facilities where spectators watch events;
- Casinos, bingo halls and gaming establishments;
- Concerts, music festivals, theatres and cinemas;
- Strip clubs, bathhouses and sex clubs;
- Racing venues (e.g. horse racing tracks, car racing tracks); and
- Places where commercial film and television productions take place, where there is a studio audience.2
The mandatory requirements do not apply to the following businesses or organizations:
- Outdoor settings, including patios (except for outdoor nightclub spaces);
- Settings where people receive medical care;
- Medical supply stores;
- Grocery stores; and
- Other similar spaces.
Exceptions to the proof of vaccination requirements
The Regulations also provide for certain exceptions to the proof of vaccination requirements. These include where an individual is entering any of the above indoor areas solely to use a washroom; access an outdoor area that can only be accessed through an indoor route; make a retail purchase; place, pay for or pick up an order; make a bet or pick up winnings at a racing track; purchase an admission or as may be necessary for health and safety. There is also an exception for children who are under the age of 12.
The Ministry of Health has confirmed that the proof of vaccination requirements do not apply to workers, contractors, repair workers, delivery workers, students, volunteers, inspectors or other individuals who are entering the indoor settings for work purposes.3
Is anyone exempt from the proof of vaccination requirements?
Medical exemptions
Under the Ontario Human Rights Code (the Code), organizations have a legal duty to accommodate individuals who are not able to get the Covid-19 vaccine due to medical or disability-related reasons, unless it significantly interferes with health and safety.4
The Regulations provide that an individual can present a written document by a physician or nurse practitioner indicating that they have a medical reason for not being fully vaccinated against Covid-19. The document must also state the effective time-period for the medical reason.5 The Ontario Human Rights Commission (OHRC)’s position is that exempting individuals with a documented medical inability to receive the vaccine may be a reasonable accommodation within the meaning of the Code.6
Religious exemptions
There are currently no religious exemptions from the proof of vaccination requirements. While the Code prohibits discrimination based on creed, a personal preference regarding vaccination does not amount to a creed under the Code. The OHRC has stated that even where a person is denied service due to a religious belief against the vaccine, the duty to accommodate under the Code does not require that they be given an exemption. The duty to accommodate can be limited where it would compromise health and safety to the point of undue hardship, such as in a pandemic.7
How to prove full vaccination status?
Individuals can prove full vaccination status by presenting a vaccine record showing that they are fully vaccinated and that their final dose was administered at least 14 days prior. There are currently two ways to do this in Ontario:
- Provide either a paper or digital copy of a vaccine receipt. A vaccine receipt can be obtained at the time of vaccination, can be downloaded from Ontario’s provincial booking portal or can be retrieved by calling the Provincial Vaccine Contact Centre at 1-833-943-3900.
- Present a digital vaccine certificate featuring a unique QR code that verifies vaccination status upon scanning.
While the Code prohibits discrimination based on creed, a personal preference regarding vaccination does not amount to a creed under the Code.
Individuals can prove their identity by presenting identification that indicates their name and date of birth, such as a driver’s licence, passport, birth certificate or health card.
Mandatory vaccination policies for high-risk settings
Covid-19 vaccination policies have become mandatory in a number of high-risk settings, due to a Directive issued by the Chief Medical Officer of Health, which includes:
- Hospitals and other health care settings;
- Licensed retirement homes;
- Certain childcare organizations and disability service providers; and
- Post-secondary education settings.
While the requirements for each setting should be consulted individually, they all state that a mandatory vaccine policy must be in place for employers, staff, contractors, volunteers and students. These individuals must provide one of the following:
- Proof of full vaccination against Covid-19;
- Proof of a medical exemption; or
- Proof of completing an approved educational session about the benefits of Covid-19 vaccination prior to declining vaccination for any reason other than a medical reason.
Individuals who do not provide proof of full vaccination or medical exemption must submit to regular antigen testing.
It is important to note that several public health units and some municipalities across the province have issued strong recommendations for employers to adopt a vaccination policy in their workplace. On Aug. 24, 2021, the Government of Ontario amended the Regulations to require that businesses operate in compliance with any advice, recommendations and instructions issued by medical officers of health regarding Covid-19 vaccination policies. As a result, employers in these affected areas, such as the City of Toronto, should follow the recommendations and implement a vaccination policy.
However, this does not necessarily mean that employers must mandate mandatory vaccines in their workplace. The policy may vary depending on the nature of the workplace and whether there is a high risk of transmission within the workplace. While some policies may require full vaccination as a condition of entering the workplace, others may require employees undergo regular Covid-19 testing or that employees continue to work remotely.
What does this mean for employees, contractors and others?
Before attending any of the above settings, employers, staff, contractors, volunteers and students should take care to check any relevant health directives and instructions to ensure they are compliant with the rules. If they are vaccinated against Covid-19 or are medically exempt, they must ensure to bring the necessary documentation and identification along with them.
The author would like to thank Saghi Khalili, articling student, for her assistance with this article.
Maria Tassou is a senior counsel member of the employment and labour practice group at Pallett Valo LLP. Her practice focuses on employment law, administrative law, workplace investigations, management training and privacy law. Tassou serves as primary officer for the firm. She regularly advises clients on a wide range of employment-related issues, including terminations, disciplinary matters, sexual harassment, human rights concerns, employment contracts, restrictive covenants and workplace policies. Tassou delivers customized management seminars and training programs to leadership teams, management and staff on employment-related topics.
References
- Subsection 2.1(5) of O. Reg. 364/20.
- Subsection 2.2(2) of O. Reg. 364/20.
- Ministry of Health, “Proof of Vaccination Guidance for Business and Organizations under the Reopening Ontario Act” (14 September 2021), online: https://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/guidance_proof_of_vaccination_for_businesses_and_organizations.pdf.
- Ontario Human Rights Commission, News Release, “OHRC policy statement on COVID-19 vaccine mandates and proof of vaccine certificates” (22 September 2021), online: http://www.ohrc.on.ca/en/news_centre/ohrc-policy-statement-covid-19-vaccine-mandates-and-proof-vaccine-certificates.
- S. 2.1(6)(c) of O. Reg. 364/20.
- Supra note 4.
- Supra note 4.