September 28, 2021

As you may be aware, on Friday the government of Ontario announced that is it easing and increasing capacity limits on a variety of venues and settings.

I have provided a brief summary and the full text of the announcement below can be read on the government of Ontario website.

Effective September 25, 2021, at 12:01 a.m., capacity limits for these indoor events will be increased to up to 50 per cent capacity or 10,000 people (whichever is less):

• Meeting and event spaces, such as banquet halls and conference/convention centres; 
• sporting events; 
• concerts, theatres and cinemas; 
• racing venues (e.g., horse racing); 
• and commercial and film television productions with studio audiences

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For certain outdoor event venues where patrons stand, capacity limits will increase to up to 75 per cent capacity or 15,000 people (whichever is less). 

For certain outdoor event venues where patrons are seated, capacity limits will be increased to up to 75 per cent capacity or 30,000 people (whichever is less). 

Proof of vaccination
Proof of vaccination will be required at all of the indoor events listed above and in outdoor settings where the normal maximum capacity is 20,000 people or more.

Proof of vaccination receipts can be downloaded and vaccinations can be booked through this Ministry of Health web page:
https://covid-19.ontario.ca/proof-covid-19-vaccination
or through the Provincial Vaccine Booking Line at 1-833-943-3900.

In the announcement, Dr. Kieran Moore, Chief Medical Officer of Health, thanks Ontarians for getting vaccinated and adhering to public health measurements, but points out that “we must all remain vigilant and continue following the measures and advice in place”.

I hope you find this information helpful and and informative and that you, your fellow workers and employees, families and loved ones stay safe and healthy in the coming weeks.Please contact me with any questions you may have or for assistance working through your staffing matters.

September 23, 2021

As you are aware, employers in Ontario are required to maintain a safe workplace under the Occupational Health & Safety Act (OHSA) while also having a duty to accommodate employees’ medical conditions under the Human Rights Code (HRC).

With the province continuing to reopen for business and vaccine regulations coming into effect, the rules for balancing these obligations have been far from clear.

In the past week there has been welcomed clarification from the Ontario Ministry of Health and the Ontario Human Rights Commission (OHRC) on two key issues:

• Medical exemptions and;
• Accommodation for those people – particularly visitors to a business – who choose not to be vaccinated because of personal preference.

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Medical exemptions
On September 14, 2021, the Ontario Ministry of Health released a short list of conditions which may warrant an exemption from COVID-19 vaccination. The Ministry’s list is intended to assist medical professionals in evaluating requests for exemptions from the COVID-19 vaccine. 

The list of exemptions is restricted to:

• severe allergic reactions or anaphylaxis to a component of a COVID-19 vaccine,
• a reaction to a dose of the vaccine, 
• a history of inflammation of the heart muscle (Myocarditis) for those aged 12 to 17, 
• a history of four conditions specific to those receiving the Vaxzervia (AstraZeneca) vaccine, and 
• those actively receiving two specific types of therapies for the treatment or prevention of COVID-19. 

Click here »» to download a .pdf of the complete list of exemptions.

This guidance is in addition and complementary to the Frequently Asked Questions document provided to Ontario physicians on September 1, 2021 by the College of Physicians and Surgeons of Ontario (CPSO).

The FAQ page states that there are very few acceptable medical exemptions to COVID-19 vaccination. The CPSO also stresses that physicians may decline to write notes and complete forms when the patient does not clearly fall within an approved exemption.

Duty to accommodate – OHRC
On September 22, 2021 the OHRC released a policy statement on COVID-19 vaccine mandates and proof of vaccine certificates, noting that “a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation” under the Human Rights Code.

The OHRC noted that while the Code “prohibits discrimination based on creed, personal preferences or singular beliefs do not amount to a creed for the purposes of the Code.”

It also states that “The OHRC is not aware of any tribunal or court decision that found a singular belief against vaccinations or masks amounted to a creed within the meaning of the Code”

Click here »» to read the full statement on the OHRC website. 

I trust you will find these clarifications helpful. Please contact me if you have additional questions, would like advice on the specifics of your workplace and employees or for assistance working through any of your staffing matters.

September 22, 2021

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On September 16, 2021, the Ontario Government extended the “COVID-19 Period” and the temporary measures introduced by O.Reg. 228/20: Infectious Disease Emergency (the “Regulation”) under the Employment Standards Act, 2000 (the “ESA”) until January 1, 2022.

Those temporary measures introduced by the Regulation were previously set to end on September 25, 2021.

The Ontario government website advises:

Temporary ESA rules continue

In response to the COVID-19 pandemic, the Ontario government made a regulation that changed certain Employment Standards Act (ESA) rules during the COVID-19 period. The temporary rules continue to be in effect until January 1, 2022.“

For further clarification:

“Beginning on January 2, 2022:

Employees will no longer be deemed to be on unpaid infectious disease emergency leave. The ESAs regular rules around constructive dismissal will resume. This means a significant reduction or elimination of an employee’s hours of work or wages may be considered  a constructive dismissal under the ESA, even if it was done for reasons related to COVID-19.The ESAs regular rules around temporary layoff will also resume. For practical purposes, an employee’s temporary layoff clock re-sets on January 2, 2022.

Even though the COVID-19 period ends on January 1, 2022 and non-unionized employees will no longer be deemed to be on unpaid infectious disease emergency leave, when the conditions are met, unionized and non-unionized employees may continue to be eligible for unpaid infectious disease emergency leave if they are not performing the duties of their position for certain”

Please contact me if you have additional questions, would like advice on the specifics of your workplace and employees or for assistance working through any of your staffing matters.

September 15, 2021

The government of Ontario has released the regulations and guidance for businesses and organizations in regards to the proof of vaccination requirements which will come into effect on September 22, 2021.

I have provided a link to the text of the full announcement below.

In summary:
The government is developing an enhanced vaccine certificate with a unique QR code that will be available by October 22, 2021.

Until such time, all Ontarians can print or download their vaccination receipt from the provincial booking portal.

Those who need support obtaining a copy of their vaccination receipt including those who do not have access to a computer or printer can call the Provincial Vaccine Contact Centre at 1-833-943-3900.

---

Guidelines for businesses
Until October 22, 2021, all versions of the receipt that the government has provided to Ontarians after vaccination are acceptable as proof of vaccination. However, a patron seeking access to a business or organization must provide the receipt that shows that they are fully vaccinated.

All other public health measures (e.g., masking and physical distancing) continue to apply to patrons, even with proof of vaccination.

Full guidelines regarding which patrons and visitors require proof and what proof is acceptable can be downloaded as a .pdf from this page:
https://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/guidance_proof_of_vaccination_for_businesses_and_organizations.pdf

Requirements
Most businesses and organizations will require patrons entering the premises to provide proof of identification and proof of being fully vaccinated against COVID-19, as per the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (ROA).

In order to enter the business and organization:

• The patron must provide the required proof of identification and proof of being fully vaccinated, and 
• The business and organization must review and confirm the proof. 

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The business or organization shall not retain any information provided by the patron. 

Proof of Vaccination
Beginning  September 22, 2021, businesses must ask for proof of vaccination and ensure that the vaccination receipt offered by the patron belongs to them. 

Validation of vaccination will be based on two key identifiers:

1. Name of the identification holder; and
2. Date of birth. 

A photo identification is not required. 

Examples of identification documents that may be used to confirm the identity of the holder of the vaccine receipt include:

• Birth certificate
• Citizenship card
• Driver’s licence
• Government (Ontario or other) issued identification card, including health card
• Indian Status Card /Indigenous Membership Card
• Passport
• Permanent Resident card

Exemptions
The proof of identification and proof of vaccination against COVID-19 requirements under O. Reg. 364/20 do not apply to: 

• Workers, contractors, repair workers, delivery workers, students, volunteers, inspectors or others who are entering the business or organization for work purposes and not as patrons. 
• A patron who is entering an indoor area solely for the following purposes:
  • to use a washroom;
  • to access an outdoor area that can only be accessed through an indoor route;
  • to make a retail purchase;
  • while placing or picking up an order, including placing a bet or picking up winnings in the case of a horse racing track;
  • while paying for an order;
  • to purchase admission; or
  • as may be necessary for the purposes of health and safety.
• Children under 12 years of age
• Patrons under 18 years of age who are entering the indoor premises of a facility used for sports and recreational fitness activities solely for the purpose of actively participating in an organized sport

There are some limited exemptions for ceremonies such as weddings and funerals, but NOT for any connected social activities such as receptions.

Again, the downloadable Guidelines provide complete information.

Medical exemptions
Patrons with a medical exemption are required to present identification and a written document, completed and supplied by a physician (designated as “MD”) or by a registered nurse in the extended class (designated as “Registered Nurse (Extended Class)”, “RN(EC)”, “Nurse Practitioner” or “NP”) stating that the individual is exempt for a medical reason from being fully vaccinated against COVID-19 and the effective time-period for the medical reason.

I hope you find this information helpful and and informative and that you, your fellow workers and employees, families and loved ones stay safe and healthy in the coming weeks and the arrival of back-to-school season.Please contact me with any questions you may have or for assistance working through your staffing matters.

NEWS RELEASE

Ontario Releasing Guidance to Support Proof of Vaccination Policy

Province Continues to Expand Third Dose Eligibility for Those at Highest Risk of COVID-19
September 14, 2021

Health

TORONTO — As the province continues to respond to the fourth wave of the pandemic driven by the highly transmissible Delta variant, the government is further protecting Ontarians through continued actions that encourage every eligible person to get vaccinated and help stop the spread of COVID-19.

Today the government released the regulations and guidance for businesses and organizations to support them in implementing proof of vaccination requirements, which take effect on September 22, 2021. Requiring proof of vaccination will help increase vaccination rates, protect individuals in higher-risk indoor settings, and keep businesses open.

Click »» here to read the full News Release on the Ontario government website

September 1, 2021

Ontario vaccination ‘passports’ and policy implications for businesses in Ontario generally and Toronto specifically

As anticipated, the government of Ontario announced today that it will require people to be fully vaccinated and provide proof of their vaccination status to access certain businesses and settings starting September 22, 2021. 

I have provided a top line summary here and the full text of the announcement below.

The definition of fully vaccinated is “two doses plus 14 days” and people will be required to provide their proof of vaccination along with photo ID to access higher-risk indoor public settings and facilities including:

• 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, fitness and recreational facilities with the exception of youth recreational sport;
• Sporting 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).

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Both paper and electronic versions of the certificate will be available.

These mandatory requirements would not apply to outdoor settings where the risk of transmission is lower and in general will not apply to settings where people receive medical care, food from grocery stores, medical supplies and the like. Indoor masking and other public health policies will continue to remain in place.

The focus of the announcement was on the situations where vaccination proof will be required and it is unclear at this time what onus will lie on the owners and employees of those businesses to enforce the requirement and request vaccination proof.

Vaccination policies in Ontario businesses

I know the subject of vaccination in the workplace and the necessity or advisability of a Vaccination Policy for employers has been a subject on the minds of many clients. Unfortunately this announcement does not address that topic specifically or provide any additional information or guidance.

Webinar and video on the subject of Vaccination Policies

In an earlier email I advised that I participated in a webinar with the Ontario Non-Profit Network (ONN) and also compiled a supplementary Question and Answer video available on my website. If you have not seen these yet, you may find them helpful in considering a vaccination policy.

The ONN webinar was presented on August 11 with Kirstin Grant, Director of People & Wellness for the Canadian Mental Health Association, Ontario Division, and moderator Sarah Matsushita of the ONN.

Link: attendee.gotowebinar.com/recording/4331891512450891522
You will be required to submit your name and email address to view the webinar.

The LeNoury Law Q and A video with key questions and updates as of August 30, 2021 can be found on my website:

lenourylaw.com/2021/08/29/video-your-vaccination-policy-what-to-consider

Toronto: Medical Officer of Health strongly recommends employers institute a vaccination policy 

Some sources have positioned this recommendation from Toronto Public Health on August 26 as a mandate requiring employers in the city to prepare and publish a vaccination policy.

It is a strong recommendation rather than a mandate, although some have argued that it acquires a compulsory nature when read in the context of some aspects of the provincial government’s  Reopening Ontario (A Flexible Response to COVID-19) Act. The full statement from the city can be accessed through »» this link.

My own advice is that a written policy is always preferable to unwritten guidelines in that it eliminates confusion and is a consistent, non-arbitrary reference point should there be any disagreement with any employee at any time.

The City provides guidelines for preparing a Vaccination Policy which can be referenced on the City of Toronto website.

I have also prepared a basic template you may find useful. If you would like to receive a copy, please contact me. I should advise that it will almost certainly require additional information in order to be appropriate for your organization’s individual requirements.

I hope you find this information helpful and and informative and that you, your fellow workers and employees, families and loved ones stay safe and healthy in the coming weeks as the back-to-school season arrives.

NEWS RELEASE

Ontario to Require Proof of Vaccination in Select Settings

Province to launch enhanced vaccine certificate and verification app to stop the spread of COVID-19

September 1, 2021

Office of the Premier

TORONTO — To further protect Ontarians as the province continues to confront the Delta-driven fourth wave of the COVID-19, the government, in consultation with the Chief Medical Officer of Health, will require people to be fully vaccinated and provide proof of their vaccination status to access certain businesses and settings starting September 22, 2021. Requiring proof of vaccination in these settings reduces risk and is an important step to encourage every last eligible Ontarian to get their shot, which is critical to protecting the province’s hospital capacity, while also supporting businesses with the tools they need to keep customers safe, stay open and minimize disruptions.

Click »» to read complete News Release on government of Ontario website