Readers of Focus will recall that on September 1, 2021, the Ontario government announced that individuals will need to be fully vaccinated and provide proof of their vaccination status in order to access select settings and businesses effective September 22, 2021.
On September 14, 2021, the Ontario government filed Regulation 645/21 (the “Regulation”) amending the Rules for Areas at Step 3 and at the Roadmap Exit Step to account for the new requirement. The Regulation comes into force on September 22, 2021. The Ontario government also released a guidance document (the “Guide”) on the requirement for businesses and organizations.
The requirement applies to the following premises:
- The indoor areas of restaurants, bars and other food or drink establishments where dance facilities are not provided, but not with respect to takeout and delivery service;
- The indoor and outdoor areas of food or drink establishments where dance facilities are provided, including nightclubs, restoclubs and other similar establishments, but not with respect to takeout and delivery service;
- The indoor areas of meeting and event spaces, including conference centres or convention centres, but not including places rented out for the purposes of a children’s day camp or overnight camp, the provision of child care, the provision of social services, the delivery or supporting the delivery of court services, or government operations or service delivery, in accordance with the General Rules at Step 3;
- The indoor areas of facilities used for sports and recreational fitness activities, including waterparks and personal physical fitness trainers, and the indoor areas of facilities where spectators watch events, but not including any part of the facility being used for a children’s day camp or overnight camp, by a provider of child care, or for the provision of social services in accordance with the Specific Rules at Step 3;
- The indoor areas of casinos, bingo halls and other gaming establishments;
- The indoor areas of concert venues, theatres and cinemas;
- The indoor areas of bathhouses, sex clubs and strip clubs;
- The indoor areas of horse racing tracks, car racing tracks and other similar venues; and
- The indoor areas of places where commercial film and television production takes place, where there is a studio audience. For the purposes of this paragraph, a member of the studio audience is considered to be a patron of the production. Cast and crew members, however, are not included.
The requirement outlined above does not apply if a patron is entering an indoor area solely for the following reasons:
- 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.
The Guide notes that the requirement does not apply to businesses or organizations that are not listed in the Regulation, including those providing access to necessary medical care, groceries, and basic medical supplies.
Other health and safety measures, such as screening of patrons, masking, physical distancing, and collecting patron contact information where required, remain in effect.
Proof of Full Vaccination for Entry
Every patron who enters designated areas of the premises of covered businesses and organizations must, at the point of entry, provide proof of identification and of being fully vaccinated against COVID-19. A patron must ensure that the information that they provide is complete and accurate. Unless the patron falls under an exemption provided for in the Regulation, if they fail to provide the required proof, they will not be permitted to enter the designated area.
Under the Regulation, a person is considered “fully vaccinated against COVID-19” if:
- They have received:
- The full series of a COVID-19 vaccine authorized by Health Canada, or any combination of such vaccines;
- 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 the proof of being fully vaccinated.
The Regulation notes that the person responsible for a business or organization covered by the above requirements has to comply with guidance published on the Ministry of Health’s (“Ministry”) website regarding what constitutes proof of identification and of being fully vaccinated against COVID-19 and how that proof is confirmed.
Starting September 22, 2021, patrons must provide proof of identification and a copy of the receipt that they received upon getting their vaccination which shows that they are fully vaccinated. The business or organization must review and confirm the proof. The Guide provides direction to employers on reviewing vaccination receipts.
With respect to identification, the identifying information of importance is the person’s name and date of birth. The Guide indicates that photo identification is not required, and the documentation can come from an institution or public body so long as it includes the holder’s name and date of birth.
For Ontario residents, expired Ontario government-issued identification (such as driver’s licenses) and expired Canadian government-issued documents (such as passports) can be used as proof of identification. For visitors from within Canada, expired passports may be used, but not expired provincial documents. For visitors from abroad, no expired documents may be used.
If the name and date of birth of the holder of the vaccination receipt matches the information on the identification, the validation of identification will be successful and complete and the individual will be allowed entry.
A digital vaccine certificate with a unique Quick Response (QR) code will be available on October 22, 2021. The Guide notes that the apps will be accessible to people with disabilities. The government will also be releasing a verification app for businesses to allow them to verify a patron’s QR code. Alternatively, patrons will still be able to use paper copies of their vaccine receipt as proof of vaccination after October 22.
Businesses and organizations must not retain any information provided pursuant to this mandatory proof of vaccination requirement.
The Guide confirms that the mandatory proof of vaccination requirement does not apply to workers, volunteers, contractors, repair workers, delivery workers, students, inspectors or others entering the business or organization for work purposes rather than as patrons.
The requirement also does not apply to patrons who:
- Are under the age of 12;
- Are under the age of 18 and 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, in accordance with Ministry guidance;
- Provide a written document, completed and supplied by a physician or registered nurse in the extended class, that sets out, in accordance with Ministry guidance, a documented medical reason for not being fully vaccinated against COVID-19, and the effective time period for the medical reason;
- Are entering the indoor premises of a meeting or event space, including a conference centre or convention centre, solely for the purposes of attending a wedding service, rite or ceremony or a funeral service, rite or ceremony, but not an associated social gathering;
- Are entering the indoor premises of a meeting or event space that is located in a place of worship or in a funeral establishment, cemetery, crematorium or similar establishment that provides funeral, cemetery or cremation services, operated by a duly licensed person, for the purposes of attending a social gathering associated with a funeral service, rite or ceremony; or
- Are entering the indoor premises of a meeting or event space other than a place described in clause (e), including a conference centre or convention centre, for the purposes of attending a social gathering associated with a wedding service, rite or ceremony or a social gathering associated with a funeral service, rite or ceremony, on or after September 22, 2021, but before October 13, 2021, as long as the patron produces the results of an antigen test (i.e. rapid test) administered within the previous 48 hours establishing that the person is negative for COVID-19 to the person responsible for the establishment.
Medical exemptions can be provided 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”).
The Guide states that in order to review proof of a medical exemption, the business or organization must ensure:
- The name of the person in the written documentation matches the identification provided;
- The information of the physician or registered nurse in the extended class is complete by including:
- Name and contact information of the physician or registered nurse in the extended class;
- Logo or letterhead identifying the physician or registered nurse in the extended class;
- Statement that there is a medical reason for the individual’s exemption from being fully vaccinated against COVID-19; and
- Any effective time period for the medical reason which includes the date the patron is seeking access to the business or organization.
Enforcement and Penalties
The failure to comply with these requirements can result in charges under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (the “Reopening Ontario Act”). Set fine amounts are $750 for individuals and $1,000 for corporations. Maximum penalties based on a prosecution can result in a fine of up to $100,000 and up to one year in jail for an individual, a fine of up to $500,000 and up to one year in jail for a director or officer of a corporation, and a fine of up to $10,000,000 for a corporation.
The Guide indicates that the police should be contacted in situations involving threats, harassment, or violence. Harassment can also constitute a matter that falls under the Human Rights Code. Obstructing someone (including a worker) exercising a power or performing a duty in accordance with the Regulation can result in charges under the Reopening Ontario Act.
In Our View
Many businesses were in favour of a vaccine passport system in the hopes that it would keep businesses open through the fourth wave. However, there remain areas of potential concern for employers.
Given the exemption of staff and volunteers from the purview of this requirement, the newly-released documentation does not provide much guidance to employers who are not covered by sector-specific instructions regarding mandatory vaccination policies for their employees. Employers are therefore left to address the issue of the vaccination of their employees separate and apart from these requirements, even though employees and patrons will be accessing the same premises.
The Guide discusses an employer’s health and safety obligations under the Occupational Health and Safety Act, and also speaks to the potential for conflict to arise in relation to this requirement. We have seen that vaccination can be a divisive issue, so employers should ensure that they have policies and practices in place to protect their workers as well as those who access their premises. The health and safety resources linked in the Guide may be a starting point for information.
Employers will also be required to put processes in place to comply with the requirement, and to train their employees accordingly. Employees will need to understand the requirements when it comes to identification and reading vaccine receipts, and later how to use the QR code app when it is released.