Finding direction on directive #6: New COVID-19 vaccine policy requirements for health services providers

2 septembre 2021 | Emily Compton, Ryle Cameron

( Disponible en anglais seulement )

With Directive #6[1] (the « Directive ») recently issued by the Ontario Chief Medical Officer of Health, a broad variety of organizations will be required to implement workplace policies regarding proof of vaccination and antigen testing by September 7, 2021. This deadline is fast approaching, and organizations impacted by the Directive must consider whether new policies need to be created in response, and how their operations may be impacted.

Does the Directive apply to my organization?

The Directive applies to the following organizations (collectively the “Covered Organizations”) and their respective impacted workers (the « Covered Individuals »):

  1. Public hospitals within the meaning of the Public Hospitals Act;[2]
    • All employees, staff, contractors, volunteers and students;
    • Any businesses or entities operating on the hospital site;
  1. Service providers within the meaning of the Home Care and Community Services Act, 1994[3] with respect to their provision of community services to which that Act applies, including home care, community services, assisted living services and services for people with acquired brain injury. This also includes Local Health Integration Networks operating as Home and Community Care Support Services with respect to the provision of community services:
    • Employees, staff, contractors, volunteers and students providing services to clients and families;
    • Employees, staff, contractors, volunteers and students interacting with workers providing services to clients and families;
    • Employees, staff, contractors, volunteers and students on the premises of a congregate care setting;
  1. Local Health Integration Networks within the meaning of the Local Health System Integration Act, 2006[4] operating as Home and Community Care Support Services with respect to long-term care home placement services:
    • Employees, staff, contractors, volunteers and students providing long-term care home placement services to clients and families;
    • Employees, staff, contractors, volunteers and students interacting with workers providing services to clients and families; and
  1. Ambulance Services within the meaning of the Ambulance Act,[5] with respect to paramedics:
    • Paramedics and community paramedics (excluding back office staff and centralized ambulance communications centre staff).

The scope of Covered Organizations under the Directive is broad. For example, part of the definition of « community services » under the Home and Community Care Act, 1994 alone includes professional services such as nursing, occupational therapy, physiotherapy, social work, speech language pathology, dietetics, training a person to provide any of these professional services, and providing prescribed equipment, supplies or other goods.[6] Covered Organizations also include organizations providing meal services, transportation services, caregiver support services, adult day programs, friendly visiting services, social or recreational services, public hospitals, local health integration networks, and ambulance services.[7]

The Ministry of Health’s Resource Guide published alongside the Directive further stipulates that third party contractors such as HVAC, fire alarm inspection, trades, landscaping, pest control, third party laboratory or food delivery services fall under the Directive’s definition of contractor in « congregate care settings. »[8]

In light of this broad definition, organizations need to consider whether they are impacted by the Directive ahead of September 7, 2021, and if they are required to take further action as a result.

What does the Directive require of Covered Organizations?

The Directive requires every Covered Organization to establish, implement and ensure compliance with a COVID-19 vaccination policy requiring its Covered Individuals to provide:

a) proof of full vaccination against COVID-19; or

b) written proof of a medical reason, provided by a physician or registered nurse, 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

c) 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:

i. how COVID-19 vaccines work;

ii. vaccine safety related to the development of the COVID-19 vaccines;

iii. the benefits of vaccination against COVID-19;

iv. the risks of not being vaccinated against COVID-19; and

v. the possible side effects of COVID-19 vaccination.

Covered Organizations may decide to remove the educational session option described in paragraph c) above from their COVID-19 vaccination policy, and require all Covered Individuals to either provide the proof required in paragraph a) or b).  If a Covered Organization removes the option of the educational section described at paragraph c), the Covered Organization is still required to make available, to the Covered Individuals, an educational session that satisfies the requirements of paragraph c).

Covered Organizations’ policies must also state that where a Covered Individual relies on either option b) or c) as described above, they must submit to regular antigen point of care testing for COVID-19, and provide verification of a negative test result at least every 7 days.

Businesses or entities operating out of public hospitals that are Covered Organizations are subject to the Covered Organization’s COVID-19 vaccination policy.

Covered Organizations are also required by the Directive to collect, maintain and disclose non-identifiable statistical information as follows to the Ministry of Health (« Statistical Information »):

a) the number of employees, staff, contractors, volunteers, and students that provided proof of being fully vaccinated against COVID-19;

b) the number of employees, staff, contractors, volunteers, and students that provided a documented medical reason for not being fully vaccinated against COVID-19; and

c) the total number of the Covered Organization’s employees, staff, contractors, volunteers and students to whom this Directive applies.

The Statistical Information may be disclosed to the Ministry of Health on request of the Ontario Chief Medical Officer of Health, and the Statistical Information may be made publicly available.

What should organizations consider ahead of September 7, 2021?

Organizations should first consider whether they qualify as a Covered Organization pursuant to the Directive. If so, they should take immediate steps to develop vaccination and antigen testing policies that apply to the Covered Individuals.

Covered Organizations that already have vaccine policies in place should ensure that they align with the requirements of the Directive.

As well, Covered Organizations should consider how the required educational sessions will be developed, approved and implemented.

To discuss your COVID-19 policy concerns, please reach out to a member of Miller Thomson LLP’s National Labour and Employment Group.


[1] Ontario Chief Medical Officer of Health, Directive #6 for Public Hospitals within the meaning of the Public Hospitals Act, Service Providers in accordance with the Home Care and Community Services Act, 1994, Local Health Integration Networks within the meaning of the Local Health System Integration Act, 2006, and Ambulance Services within the meaning of the Ambulance Act, R.S.O. 1990, c. A.19., August 17, 2021
https://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/directives/vaccination_policy_in_health_settings.pdf

[2] Public Hospitals Act, R.S.O. 1990, c. P.40

[3] Home Care and Community Services Act, 1994, S.O. 1994, c. 26

[4] Local Health System Integration Act, 2006, S.O. 2006, c. 4

[5] Ambulance Act, R.S.O. 1990, c. A.19

[6] Home Care and Community Services Act, 1994, S.O. 1994, c. 26 ss. 2(3), 2(7)

[7] Ibid, ss. 2(3), 2(4)

[8] Ministry of Health, Directive #6: Resource Guide, August 18, 2021,

https://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/directives/directive_6_policy_resource.pdf

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