Ontario Chief Medical Officer of Health Issues Separate Vaccine Instructions to Certain Ministry of Children, Community and Social Services Providers

On August 30, 2021, the Ontario Chief Medical Officer of Health (OCMOH) issued two sets of instructions (Instructions) to certain Ministry of Children, Community and Social Services (MCCSS) funded agencies, regarding the implementation of a mandatory vaccine policy. One set of Instructions applies specifically to Children’s Treatment Centres and certain third parties that provide contracted services to those organizations; the other applies to other MCCSS Funded Parties and certain related third parties. Accompanying guidelines have also been issued.

The Instructions have been issued for the purpose of achieving high immunization rates among individuals who regularly provide essential close-contact services to vulnerable populations, especially in light of the more transmissible Delta variant. Further to the recent amendments to O. Reg. 364/20 Rules For Areas at Step 3 and at The Roadmap Exit Step, businesses or organizations are required to comply with “any advice, recommendations and instructions” issued by the OCMOH (or by a medical officer of health after consultation with the OCMOH) regarding the establishment and implementation of vaccination policies.

In this Reaching Out, we review the Instructions which set out the requirements for the MCCSS Covered Organizations, as well as the guidelines.

Which organizations are covered by the Instructions?

The Instructions apply to the following organizations (collectively, Covered Organizations):

Children’s Treatment Centres

Children’s Treatment Centres (CTCs) funded under the Child, Youth and Family Services Act, 2017 (CYFSA) to deliver services (including “children’s rehabilitation services”) for children and youth with special needs
Third parties that have entered into a contract with CTCs to provide “children’s rehabilitation services” for children and youth with special needs.

Other MCCSS Funded Parties

Service agencies as defined in the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008 (SIPDDA)
Third parties that have entered into a contract with a service agency, as defined in SIPDDA, to provide services and supports to adults with developmental disabilities
A transfer payment recipient funded by the MCCSS that provides/delivers:
- intervenor services for persons who are deafblind or residential
- emergency residential services under the Violence Against Women Support Services program or the Anti-Human Trafficking Community Supports program
- Healthy Child Development (HCD) and Early Intervention programs.
Licensees operating a children’s residence as defined in the CYFSA and licensees to which section 117 of O. Reg. 156/18 made under the CYFSA applies
Certain businesses or organizations providing residential care within the meaning of the CYFSA
Transfer payment recipients funded under the CYFSA that provide programs and deliver services with respect to children and youth with special needs programs including Early Intervention; Autism; Respite; Complex Special Needs funded services; Coordinated Service Planning; and FASD worker services
Transfer payment recipients funded by MCCSS that provide and deliver HCD and Early Intervention programs
Third parties that have entered into a contract with a transfer payment recipient to provide services to children and youth with special needs.

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, students and persons who provide services in an Education and Community Partnership program (collectively, Required Individuals). Under the Policy, a Required Individual 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, vaccine safety, the risks of not being vaccinated and the possible side effects of the vaccine.

CTCs and third parties that have entered into a contract with CTCs to provide “children’s rehabilitation services” may remove the option of requiring proof of completion of an educational session (paragraph (c)) from their Policy and instead require Required Individuals to provide either proof of full vaccination (paragraph (a)) or written proof of a medical reason for not being fully vaccinated (paragraph (b)). Where they remove this option, they must still make available an educational session that satisfies the requirements of paragraph (c) to the Required Individuals. (NOTE: This specific provision does not apply to Covered Organizations that are not CTCs and third parties that have entered into a contract with CTCs to provide “children’s rehabilitation services.”)

For all Covered Organizations, where a Required Individual does not provide proof of being fully vaccinated but relies on the medical reason described in paragraph (b) or, if applicable, the educational session described in paragraph (c), that Required Individual must submit to regular antigen point-of-care testing and demonstrate a negative result at a frequency determined by the Covered Organization, at a minimum of once every seven days. The verification of the test result must be in a form determined at the discretion of the Covered Organization. MCCSS has indicated that test kits are available to Covered Organizations free of charge through the Provincial Antigen Screening Program.

The Instructions require every Covered Organization to collect, maintain and disclose statistical (non-identifiable) information about the number of Required Individuals who provided proof of being fully vaccinated, those who provided proof of a medical exemption and those who completed an educational session, together with the total number of the Covered Organization’s Required Individuals to whom the Instructions apply. The information must be disclosed to the Ministry of Children, Community and Social Services (Ministry) in the manner and within the timelines specified by the Ministry and may be made public. The Ministry has indicated the first reporting deadline is October 7, 2021, with monthly reporting thereafter. Further details on the reporting mechanism will be provided in the near future.

Effective date of implementation

Covered Organizations must establish and implement a Policy no later than September 23, 2021.

Guidelines for Implementation

The Ministry also released Guidelines for Implementation for each set of Instructions (Guidelines for Implementation of COVID-19 Vaccination Policy, Guidelines for CTCs, (Guidelines)). The Guidelines provide information to help support Covered Organizations in developing and implementing their COVID-19 immunization policies.

Among other things, the Guidelines set out:

how Required Individuals may provide proof of vaccination or proof of a medical reason for not being vaccinated against COVID-19, which must include the duration of not being able to receive the vaccine,
how Required Individuals who do not provide proof of vaccination may provide proof they have completed an approved educational program,
what Covered Organizations should consider when choosing the content for the educational program they will be offering and what it must, at a minimum, address,
how Covered Organizations can implement regular antigen point-of-care testing for Required Individuals who are not fully vaccinated, are partly vaccinated or do not provide proof of vaccination,
ways Covered Organizations may communicate the content/requirements of their policy, including sample key messages, and
what information Covered Organizations will need to collect, maintain and disclose.

In addition, the Guidelines include Appendices. Appendix 1 sets out the list of applicable Covered Organizations as defined in the Letter of Instruction issued by the Office of the Chief Medical Officer of Health. Appendix 2 includes links to sample resources to support the applicable Covered Organizations in the creation of their educational programs.

Going forward for the Covered Organizations

For those MCCSS Covered Organizations that already have vaccination policies in place, it is recommended that you ensure those policies align with the Instruction applicable to your organization.

Consideration will need to be given to operationalizing the Instructions including, among many other things, whether CTCs and third parties that have entered into a contract with CTCs to provide “children’s rehabilitation services” should remove the option of requiring proof of completion of an educational session (paragraph (c)) from their Policy. Consideration must also be given to 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 regular Hicks Morley lawyer will be able to assist you with the practical and legal implications related to the drafting and implementation of your vaccination policy.

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. ©

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