College Update
Vaccination Instructions for Colleges Issued by Ontario Chief Medical Officer of Health
Date: September 2, 2021
On August 30, 2021, the Ontario Chief Medical Officer of Health issued instructions (Instructions) to certain organizations in the post-secondary education sector regarding the implementation of a mandatory vaccine policy for employees, staff, contractors, volunteers and students.
The Instructions recognize that some employees, staff, contractors, volunteers and students may remain unvaccinated. The Instructions have been issued with a view to protecting staff and students in post-secondary institutions from COVID-19 (in particular, the Delta variant) by reducing the risk of transmission of the virus.
In this College Update, we review the Instructions which set out the requirements for the applicable organizations.
Which organizations do the Instructions apply to?
The Instructions apply to the following organizations (collectively, Covered Organizations):
- Universities
- Colleges of Applied Arts and Technology
- Private Career Colleges
- Degree-granting institutions authorized by an Act of the Legislature
- Persons who deliver in-person teaching or instruction in accordance with a consent given under section 4 of the Post-secondary Education Choice and Excellence Act, 2000
- Persons authorized to provide apprenticeship programs under s. 64(5) of the Ontario College of Trades and Apprenticeship Act, 2009
- Any other designated learning institution under section 211.1 of the Refugee Protection Regulations (Canada) other than schools and private schools under the Education Act which are subject to separate instructions to be issued through the Ministry of Education.
Requirement for proof of vaccination and antigen point-of-care testing
The Instructions require that the Covered Organizations establish, implement and ensure compliance with a COVID-19 Vaccination Policy (Policy) for employees, staff, contractors, volunteers and students (collectively, Required Individuals). Under the Policy, a Required Individual who attends campus must provide:
(a) proof of full vaccination against COVID-19, or
(b) written proof of a medical reason from a physician or registered nurse in the extended class (e.g. Nurse Practitioner) 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; at a minimum, the session must address how the COVID-19 vaccines work and their benefits, the risks of not being vaccinated and the possible side effects of the vaccine.
A Covered Organization may remove the option of requiring proof of completion of an educational session (paragraph 1(c)) from its Policy and instead require Required Individuals to provide either proof of full vaccination (paragraph 1 (a)) or written proof of a medical reason for not being fully vaccinated (paragraph 1 (b)). Where it removes this option, the Covered Organization must still make available an educational session that satisfies the requirements of paragraph 1 (c) to the Required Individuals.
Where a Required Individual does not provide proof of being fully vaccinated but relies on the medical reason described in paragraph 1 (b) or, if applicable, the educational session described in paragraph 1 (c), that Required Individual must submit to regular antigen point-of-care testing and demonstrate a negative result at a minimum of once every seven (7) days or such shorter frequency as determined by the Covered Organization. The verification of the test result must be in a form determined at the discretion of the Covered Organization. The Ontario government has provided guidance in the form of a Postsecondary Education Health Measures Framework for Fall 2021 issued August 31, 2021 by Ministry of Colleges and Universities (MCU) for Covered Organizations.
Under the Instructions, every Covered Organization must collect, maintain and disclose statistical (non-identifiable) information about the number of Required Individuals who provided proof of being fully vaccinated, the number who provided proof of a medical exemption and the number who completed an educational session under paragraph 1 (c) (where applicable), together with the total number of the Required Individuals to whom the Instruction applies. The information shall be disclosed to the MCU as may be directed. The MCU may require additional detail and may make the statistical information public.
Effective date of implementation
The requirements of the Instructions are to be implemented by September 7, 2021.
Note that the government has also amended O.Reg. 364/20: Rules for Areas at Step 3 and at the Roadmap Exit Step, which will, effective September 7, 2021, remove physical distancing and capacity limit requirements for indoor instructional spaces (e.g., classrooms, labs, etc.). Physical distancing and capacity limits will continue to apply to outdoor instructional spaces and to non-instructional spaces. Readers are reminded that masking requirements remain in effect throughout the College in accordance with existing regulations.
Going forward for the Covered Organizations
For those organizations that already have vaccination policies in place, it is recommended that you ensure those policies align with these Instructions.
Consideration will need to be given to operationalizing the Instructions including, among many other things, whether to remove the option of requiring proof of completion of an educational session (paragraph 1 (c)) from your Policy, as well as decisions about how the antigen testing will be implemented, such as hours of operation and staffing, and how and when the educational sessions will be offered.
Your Hicks Morley lawyers will be able to assist you with the practical and legal implications related to implementation.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
