As of March 1, 2022, several COVID-19 public health measures in Ontario were lifted, including the vaccination passport system that applied to indoor public settings such as restaurants and cinemas. As of March 21, mask mandates have been dropped except for certain settings.
Importantly, the government’s loosening of these strict public health requirements should not be seen as reflecting a decrease in official support for vaccination, or other health measures such as masking, as means to combat COVID-19.
Nonetheless, provincially regulated employers in Ontario may be asking themselves whether the government’s move away from various protective measures impacts the mandatory vaccination policies that many employers in Ontario implemented in the past year. In particular, such employers may be wondering if they should now repeal those policies.
In short, employers do not necessarily need to follow the government’s lead in rolling back proof of vaccination requirements in the workplace. Regardless of the public health measures enacted (or repealed) by the government, provincially regulated employers in Ontario have a duty under the Occupational Health and Safety Act to “take every precaution reasonable in the circumstances” for the protection of workers in the workplace, which may, depending on the circumstances, include enacting and maintaining a mandatory COVID-19 vaccination policy. Accordingly, even as COVID-19 related public health measures are gradually repealed, employers may be required to continue to treat the virus as a threat to workplace health and safety and respond accordingly.
As such, an employer’s mandatory vaccination policy may be maintained for as long as the policy is a reasonable precaution to take in response to the continued risk of COVID-19 in the workplace. This is a contextual inquiry that will depend on whether health officials continue to advocate for vaccination as a means to combat COVID-19, relevant epidemiological conditions as well as the specific circumstances of the employer. Some factors employers can consider are the following:
- What is the current level of COVID-19 circulation in the community?
- How much of a threat does COVID-19 currently pose to occupational health and safety? The gradual building of immunity within the population and the emergence of new variants may cause the risks posed by COVID-19 to fluctuate over time.
- Are employees able to adequately physically distance when they come into work? Must they interact in close proximity with members of the public?
- Do employees come into contact with individuals who are especially vulnerable to COVID-19 (e.g., senior citizens, those who are immunocompromised)?
- Are alternative and less invasive prevention measures capable of adequately guarding against COVID-19 (e.g., masking, regular rapid testing, enhanced PPE, etc.)?
- Is a mandatory vaccination policy required and/or recommended by public health authorities?
Given the rapidly evolving situation with respect to COVID-19 in Ontario, employers are advised to regularly re-evaluate all of their COVID-19 measures, including mandatory vaccination policies. Ideally, employers should revisit their COVID-19 policies and protocols every month or so (or whenever the government makes important announcements about public health measures) to ensure that they are appropriate in light of current circumstances.
If after engaging in such a review, an employer determines that maintaining its mandatory vaccination policy is no longer a reasonable precaution for its specific workplace, it may be acceptable to repeal the policy. However, before doing so, employers should discuss the issue with impacted Joint Health and Safety committees and satisfy any consultation obligations that may exist under their collective bargaining agreement(s). As well, employers should be prepared to quickly re-impose mandatory vaccination requirements should doing so become necessary.
As has been the case throughout the pandemic, employers will need to remain flexible and adapt their COVID-19 precautions as the state of the pandemic continues to evolve.