October 14, 2021

Amendment of “Step 3”: Ontario Regulation 577/21

In the absence of public health guidance on the issue, Ontario employers have coped with uncertainty surrounding a basis for implementing a COVID-19 vaccination policy for their employees. However, on August 24, 2021, the provincial government provided a much-needed regulatory foundation by issuing Ontario Regulation 577/21.

Ontario Regulation 577/21 amends ‘Step 3’ of the provincial re-opening process, by now including a requirement that employers operate in compliance with any advice, recommendations and instructions requiring the establishment of a COVID-19 vaccination policy, issued by the Chief Medical Officer of Health, or by a medical officer of health after consultation with the Office of the Chief Medical Officer of Health.

Prior to the Step 3 amendment, the City of Toronto’s Medical Officer of Health, Dr. Eileen de Villa, issued a statement recommending that employers implement a COVID-19 vaccination policy for the safety of their employees and the general public. Due to Dr. de Villa’s recommendation, employers within Toronto can now rely on Regulation 577/21 in requiring their employees to comply with the employer’s COVID-19 vaccination policy. The City of Toronto has provided detailed guidelines for establishing a vaccination policy in the workplace, and stipulates that the workplace policy should adhere to the Occupational Health and Safety Act , the Ontario Human Rights Code and privacy laws. The guidance also provides a sample policy, for further clarity. 

In the Peel region, following the Step 3 amendment, Dr. Lawrence Loh, Peel’s Medical Officer of Health, strongly recommended the implementation of vaccine policies in places of work, thereby expanding to the Peel region employers’ ability to rely on Regulation 577/21 in implementing their COVID-19 vaccination policies.

Accordingly, municipalities and private business have begun implementing COVID-19 vaccine mandates including employees from the Region of Peel, City of Toronto, long-term care homes and police forces across Ontario.

Valid Proof of Vaccinated Status

Hand in hand with workplace COVID-19 vaccination policies is the need for legitimate proof of vaccinated status to reduce risks in the physical workplace. However, until now the Ontario government has been reluctant to commence the roll out of vaccine passports due to concerns that they would create a “split society”.

In addition, a Canadian Federation of Independent Businesses (CFIB) study indicates that fewer than 50% of small business owners are in favour of a vaccine passport for their employees. Approximately 48% of small business owners said that they would agree with using vaccine passports for their employees and yet 55% of small business owners are in support of mandatory vaccines for employees as an alternative to lockdowns.

In the absence of a government-orchestrated proof of vaccination system, on August 26, 2021, Dr. Lawrence Loh advised that Peel region was exploring the idea of creating regional COVID vaccine certificates.

However, in the wake of a fourth wave of the COVID-19 pandemic and increasing pressure from public health officials and other levels of government – most recently Prime Minister Justin Trudeau – Premier Doug Ford announced on September 1st the “enhanced COVID-19 vaccine certificate” which came in to effect on September 22, 2021.

The enhanced certificate system is a temporary measure. However, on October 22, 2021, the Ontario government will move to using certificates with QR codes and release a verification app for validation of the QR codes to determine an individual’s vaccination status.

See the guidebook for Ontario Enhanced COVID-19 Vaccine Certificate here.

The vaccine certificate system applies to the following settings:

  • Restaurants and bars (excluding outdoor patios, delivery and takeout).
  • Nightclubs, including outdoor areas.
  • Meeting and event spaces like banquet halls and convention centres.
  • Sports and fitness facilities and gyms, with the exception of youth recreational sports.
  • Sporting events.
  • Casinos, bingo halls and gaming establishments.
  • Concerts, music festivals, theatres and cinemas.
  • Strip clubs, bath houses and sex clubs.
  • Racing venues.

However, the vaccine certificate system does not apply to employees in these settings.

In addition to the anticipated roll-out of the vaccine certificate system, it is also crucial that the Ontario government provide clear instructions for employers who wish to rely on the vaccine passport system to enable their employees to safely return to physical workspaces. Further guidance from the Ontario government officials is expected in the coming weeks.