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LeClair & Associates Newsletter: September 22, 2021

Wednesday, September 22, 2021 - 21:32

NEW: Provincial Update and Extension to temporary layoffs and the IDEL?

  • Through Regulation 650/21, the Ontario Government has once again extended “the COVID-19 Period”, this time to January 1, 2022, meaning that non-unionized employees who remain on a temporary layoff will continue to be deemed as being on Infectious Disease Emergency Leave (“IDEL”) and not be subject to the ordinary time limits for temporary layoffs under the Employment Standards Act (“ESA”). In addition, it also means that their temporary layoffs will not constitute constructive dismissals for purposes of the ESA.

NEW: Vaccine Passports are now required in certain settings and which vaccines or combination of vaccines qualify?

  • Under Regulation 645/21, together with the associated Ministry of Health’s ‘Proof of Vaccination Guidance’ publication, effective from today - September 22, 2021, certain businesses must now ensure that any patron entering its indoor premises, is fully vaccinated, meaning that the individual has received one of the following:
    • The full series of Health Canada approved COVID19 vaccines (or a combination thereof);
    • 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 Canada; or
    • o Three doses of a COVID-19 vaccine not authorized by Health Canada.

Are there any time limits to recent vaccine recipients complying with this new requirement – Yes

  • Timing of the vaccines: The final dose of the vaccine must also have been received at least 14 days before providing proof of being fully vaccinated and is to be enforced prior to entering the indoor area of one of the following businesses listed below.

Is my business on the vaccine passport list?

  • The following businesses will now need to enforce vaccine passport requirements: Restaurants, bars, and other food or drink establishments, including nightclubs and restoclubs; meeting and event spaces, including banquet halls, conference rooms and convention centres; sport and recreational fitness facilities, including waterparks and venues for personal fitness training; casinos, bingo halls and other gaming establishments; concert venues, theatres and cinemas; bathhouses, sex clubs and strip clubs; horse racing tracks, car racing tracks, and similar venues; and commercial filming production areas where there is a studio audience.

Are there any exceptions where patrons need not provide that they are fully vaccinated?

  • Yes, proof of full vaccination is not required for entry to an indoor area if the patron enters solely for the purpose of:
    • Using a washroom;
    • Accessing an outdoor area only accessible through an indoor route;
    • Making a retail purchase;
    • Placing, picking up or paying for an order, including placing a bet or picking up winnings in the case of a horse racing track; or
    • Purchasing admission.

Exceptions under the Human Rights Code.

  • Medical exemptions can be relied upon: If a patron has written confirmation from a doctor or registered nurse confirming that they cannot receive a vaccine for medical reasons, then (currently) they will be exempt from providing proof of a full vaccination and will be permitted to enter the business or establishment. The Province is however currently looking at ways of better managing and integrating these kinds of exemptions.
  • Guidelines on when medical exemptions could apply: On September 14, 2021, the Ontario Ministry of Health released a guidance document for medical practitioners outlining the limited circumstances in which a medical exemption to a vaccination may apply. These guidelines can be found hereunder, however it appears unlikely that these will be policeable, as medical notes citing an exemption do not need to disclose the medical condition itself, making comparison with these guidelines unlikely. https://health.gov.on.ca/en/pro/ programs/publichealth/coronavi rus/docs/vaccine/medical_exe mptions_to_vaccination.pdf
  • Interestingly, the vaccine passport or proof of vaccine requirement does not provide for religious objections, despite these being possible grounds of reliance and protected under the Human Rights Code. It is unclear whether this is an oversight in the Regulation or whether the proof of vaccine requirement will be subject to challenge for failing to account for these possible grounds or reliance.

Analysis

  • Although these new requirements seem straightforward, a number of questions remain: This includes the undeniable impact on businesses in enforcing proof of vaccines, especially where many of these categories of businesses have either been closed, or restricted in recent months and therefore can illafford turning away paying patrons. Furthermore, even partially vaccinated patrons will now be turned away, as well as fully vaccinated patrons who received their final vaccine dose less than 14 days ago, whereas unvaccinated individuals who rely on a medical exemption (or who want to use the washroom or make a retail purchase) will conceivably be permitted entry.
  • Level of Scrutiny: Seemingly, these kinds of businesses and establishments will also be required to scrutinize the quality or type of vaccine that each patron has received (i.e. whether Canada approved or not) and the timing of the vaccine (i.e. more than 14 days prior). These additional requirements are unlikely to be practical in large establishments or hospitality settings that typically experience sudden surges in patrons, such as venues, stadiums and restaurants.

Does the vaccine passport requirement apply to employees?

  • Interestingly, no, and it is likely that the Province is instead leaving this up to each workplace to determine, in accordance with clear Public Health Directives.

Are there any other exemptions that apply?

  • Yes, attendance at funeral services, rites, ceremonies or weddings will not require proof of vaccination.

What forms of proof are acceptable in order to demonstrate proof of vaccine?

  • Either a paper copy or electronic vaccination receipt/certificate will be acceptable, along with the individuals proof of identification that matches the name and date of birth on the vaccination receipt/certificate. Photo identification is not required.

Compliance

  • Fines: Businesses or organizations which fail to enforce these requirements may be found to have violated the Reopening Ontario Act and may be fined as a result – despite a number of the questions highlighted being unclear and/or impractical.
  • Disconnect? Despite needing to comply with the above in order to avoid fines, businesses are not permitted to retain information regarding a patrons vaccination status, making it difficult if not impossible to prove past compliance if challenged. Clearly, there will be more to come and hopefully some answers and clarity to the above.

We will continue to share updates and insights however, for specific questions, please feel free to reach out to us directly at – nic@leclairandassociates.ca (519) 859 6015

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