Chief Medical Officer of Health Issues COVID-19 Vaccination Policy Instructions for Select Sectors

As discussed in a previous Focus Alert, on August 24, 2021, the Ontario government filed a regulation requiring businesses and organizations to operate in compliance with any advice, recommendations and instructions issued by the Office of the Chief Medical Officer of Health (CMOH):

1. requiring the business or organization to establish, implement and ensure compliance with a COVID-19 vaccination policy; or
2. setting out the precautions and procedures that the business or organization must include in its COVID-19 vaccination policy.

On August 30, 2021, the CMOH issued Instructions regarding the establishment and implementation of COVID-19 vaccination policies for the following organizations:

• Post-secondary institutions;
• Children’s Treatment Centres;
• Organizations covered by the purview of the Ministry of Children, Community and Social Services (MCCSS); and
• Licenced retirement homes.

On September 7, 2021, the CMOH issued Instructions with respect to schools and child care organizations.

Post-Secondary Institutions

The following post-secondary institutions are required to establish and implement a COVID-19 vaccination policy by no later than September 7, 2021:

• A university;
• A college of applied arts and technology;
• A private career college;
• An institution that is authorized to grant a degree by an Act of the Legislature,
• A person who is delivering in-person teaching or instruction in accordance with a consent given under section 4 of the Post-secondary Education Choice and Excellence Act, 2000;
• A person approved to provide training for apprenticeship programs under paragraph 5 of section 64 of the Ontario College of Trades and Apprenticeship Act, 2009; or
• Any other institution that is a designated learning institution within the meaning of section 211.1 of the Immigration and Refugee Protection Regulations (Canada), other than a school or private school within the meaning of the Education Act.

The policy will apply to the following individuals who attend campus: employees, staff, contractors, volunteers, and students.

Children’s Treatment Centres

The following organizations are required to establish and implement a COVID-19 vaccination policy by no later than September 23, 2021:

• Children’s Treatment Centres (CTCs) funded under the Child, Youth and Family Services Act, 2017 (CYFSA) to deliver services (including “children’s rehabilitation services”) for children and youth with special needs; and
• Third parties that have entered into a contract with CTCs to provide “children’s rehabilitation services” for children and youth with special needs.

The policy will apply to employees, staff, contractors, volunteers, students, and persons who provide services in an Education and Community Partnership program.

MCCSS Organizations

The following organizations falling under the purview of the MCCSS are required to establish and implement a COVID-19 vaccination policy by no later than September 23, 2021:

• Service agencies, as defined in the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008 (SIPDDA);
• Third parties that have entered into a contract with a service agency, as defined in SIPDDA, to provide services and supports to adults with developmental disabilities (except host family residences under SIPDDA);
• A transfer payment recipient funded by the MCCSS that provides intervenor services for persons who are deafblind;
• A transfer payment recipient funded by MCCSS that provides residential or emergency residential services under the Violence Against Women Support Services program or the Anti-Human Trafficking Community Supports program;
• Licensees operating a children’s residence as defined in the CYFSA and licensees to which section 117 of Ontario Regulation 156/18 made under the CYFSA applies;
• Businesses or organizations providing residential care within the meaning of the CYFSA where:
  • No licence is required pursuant to Part IX; and
  • The child is placed with the business or organization by a service provider as defined in the CYFSA;
• Transfer payment recipients funded under the CYFSA that provide programs and deliver services with respect to children and youth with special needs programs including Early Intervention; Autism; Respite; Complex Special Needs funded services; Coordinated Service Planning; and FASD worker services (except direct funding programs such as Special Services at Home, through which families receive funding to purchase their own services);
• Third parties that have entered into a contract with a transfer payment recipient to provide services to children and youth with special needs (except foster care as defined under CYFSA); and
• A transfer payment recipient funded by MCCSS that provides and delivers Healthy Child Development (HCD) and Early Intervention programs.

The policy will apply to employees, staff, contractors, volunteers, and students, as well as persons who provide services in an Education and Community Partnership program.

Licenced Retirement Homes

Licenced retirement homes are required to establish a COVID-19 vaccination policy by no later than September 7, 2021, and to implement it by no later than September 21, 2021.

The policy will apply to staff (as defined by the Retirement Homes Act, 2010), contractors, volunteers, and students.

Schools and Child Care Organizations

The following organizations related to schools and child care are required to establish a COVID-19 vaccination policy by September 7, 2021, and to implement it by September 27, 2021:

• Licensees within the meaning of the Child Care and Early Years Act, 2014 (CCEYA);
• The Provincial Schools Authority within the meaning of the Provincial Schools Authority Act;
• The Centre Jules-Léger Consortium as established by the Education Act;
• Boards and private schools within the meaning of the Education Act, other than schools operated by:
  1. a band, a council of a band or the Crown in right of Canada;
  2. an education authority that is authorized by a band, a council of a band or the Crown in right of Canada, or

• an entity that participates in the Anishinabek Education System; and

• Transportation consortia and businesses that contract with transportation consortia or with boards through transportation consortia that organize or provide for the transportation of students to and from school under s. 190 of the Education Act.

For the transportation-related organizations outlined above, the policy will apply to staff, volunteers, student practitioners, contractors or other individuals who supervise or transport children or students to or from a location at which instruction is provided or an activity that is part of the program of the school, or otherwise frequently attend the premises at which instruction is provided.

For the other child care and educational organizations outlined above, the policy will apply to:

• staff, volunteers, and student practitioners, except where the individual works remotely and the individual’s work does not involve in-person interactions;
• home child care providers and individuals who are ordinarily a resident of or frequently at a home child care premises; and
• contractors and other individuals who frequently attend the premises at which child care or instruction is provided or at the offices of a board to deliver services, who may have direct contact at the premises with any individual listed above or with a child or student.

COVID-19 Vaccine Policy Requirements

The vaccine policy requirements for all of the above-noted organizations (the “Covered Organizations”) are largely the same.  The Covered Organizations are required to establish, implement, and ensure compliance with a COVID-19 vaccination policy that requires the above-noted individuals (the “Required Individuals”) to provide:

1. Proof of full vaccination against COVID-19, which is defined as “having received the full series of a COVID-19 vaccine or combination of COVID-19 vaccines approved by WHO (e.g., two doses of a two-dose vaccine series, or one dose of a single-dose vaccine series); and having received the final dose of the COVID-19 vaccine at least 14 days ago”; or
2. written proof of a medical reason, provided by a physician or registered nurse in the extended class that sets out:
   • a documented medical reason for not being fully vaccinated against COVID-19, and
   • the effective time period for the medical reason; or
3. proof of completing an educational session approved by the Covered Organization about the benefits of COVID-19 vaccination prior to declining vaccination for any reason other than a medical reason. The approved session must, at minimum, address:
   • how COVID-19 vaccines work;
   • vaccine safety related to the development of the COVID-19 vaccines;
   • the benefits of vaccination against COVID-19;
   • risks of not being vaccinated against COVID-19; and
   • possible side effects of COVID-19 vaccination.

For covered post-secondary institutions, CTCs, and licenced retirement homes, organizations have the option of removing the educational session option and requiring all Required Individuals to provide proof of full vaccination, or proof of a medical reason for not being fully vaccinated.  If the educational session option is removed, the Covered Organization must still make available an educational session that satisfies the stipulated requirements outlined above.

The vaccination policy must require that where a Required Individual does not provide proof of full vaccination, but instead relies on the medical reason or educational session exceptions outlined above, the Required Individual must:

1. submit to regular antigen point of care testing for COVID-19 (i.e. a rapid test) and demonstrate a negative result, at intervals to be determined by the Covered Organization, which must be at minimum once every seven days, and
2. provide verification of the negative test result in a manner determined by the Covered Organization that enables the Covered Organization to confirm the result at its discretion.

The above-noted rapid testing requirement does not apply to a policy relating to a child care premises on reserve.

Where a board advises that it has already ensured compliance with policy and testing requirements in respect of someone who supervises students being transported to or from a location at which instruction is provided, then the transportation consortium or business that contracts with transportation consortia or with boards through transportation consortia that organize or provide for the transportation of students to and from school does not need to further confirm that the individual complied with those policy and testing requirements.

Where a licensee under the CCEYA is located at a school operated by a board, the board does not have to confirm policy and rapid testing compliance for the licensee’s staff, volunteers, student practitioners, contractors, or other visitors.  The licensee does not have to share statistical information, as discussed further below, with the board.

Statistical Information Requirements

Covered Organizations must collect, maintain, and disclose the following statistical (non-identifiable) information:

1. the number of Required Individuals that provided proof of being fully vaccinated against COVID-19;
2. the number of Required Individuals that provided a documented medical reason for not being fully vaccinated against COVID-19;
3. the number of Required Individuals that completed an educational session about the benefits of COVID-19 vaccination in accordance with the educational session exception outlined above, where applicable; and
4. the total number of the Covered Organization’s Required Individuals to whom the respective Instructions apply.

Covered Organizations are required to disclose the Statistical Information to the applicable Ministry in the manner and within the timelines indicated by the Ministry. The Ministry can request specified additional detail within the above-noted information.  The statistical information may be disclosed by the Ministry, and the Ministry may also make it publicly available.

For post-secondary institutions, the applicable Ministry is the Ministry of Colleges and Universities. The applicable Ministry is the MCCSS for CTCs and the various MCCSS-funded organizations discussed above. For licenced retirement homes, the applicable Ministry is the Ministry for Seniors and Accessibility. For schools and child care organizations, the applicable Ministry is the Ministry of Education.

Businesses that contract with transportation consortia or with boards through transportation consortia that organize or provide for the transportation of students to and from school under s. 190 of the Education Act must collect and maintain the information outlined above and disclose it to each board in respect of which they provide transportation services.  The businesses must also provide additional detail regarding the above-noted information if a board so requests.  A board must include the statistical information provided by transportation businesses in the information that it collects, maintains, and discloses to the Ministry of Education.

In Our View

Organizations covered by the CMOH’s Instructions will be required to establish, implement, and ensure compliance with a COVID-19 vaccination policy (which can take various forms), in certain instances within a relatively short time period.  Organizations will also have to address the logistics of a rapid antigen testing process for unvaccinated individuals.

While organizations are mandated to have a vaccination policy in place, to date, the CMOH’s Instructions do not go so far as to mandate vaccination. As such, it has been left to the organizations themselves, where permitted, to determine if they wish to mandate vaccination by removing the option allowing a Required Individual to refuse a vaccination after attending an educational session.

The government has released the Postsecondary Education Health Measures Framework for Fall 2021, which includes guidance regarding the implementation of COVID-19 vaccination policies and procedures in accordance with the CMOH’s Instructions.

Guidelines for implementing the CMOH’s Instructions with respect to Children’s Treatment Centres and the other covered organizations that fall under the purview of the MCCSS have been prepared by the government and should be consulted for further information.

The above-noted guidance documents note that Covered Organizations have access to free rapid antigen screening kits through the Provincial Antigen Screening Program.

For more information on these new requirements, and for information about vaccination policies for organizations that do not fall within one of the specific settings discussed above, please contact Jennifer Birrell at 613-940-2740, Vicky Satta at 613-940-2753, or J.D. Sharp at 613-940-2739.

*** Please note that the summary provided in this article is based on information available at the date of posting. Matters relating to vaccination policies are rapidly evolving. The information contained herein is subject to further change, including without limitation any new or amended Instructions, orders, or directives. We will endeavour to continue to keep readers updated. ***