On May 31, 2021, the Ministry of Long-Term Care announced that it would be issuing a Minister’s Directive (the “Directive”) pursuant to the Long-Term Care Homes Act, 2007. The Directive will make Ontario the first province in Canada to mandate COVID-19 immunization policies for staff in long-term care homes. The hope is that, by imposing this additional measure consistently in the long-term care sector throughout the province, the likelihood of infections and outbreaks affecting some of society’s most vulnerable populations will be further reduced, thereby allowing residents to begin to enjoy a wider array of activities intended to support their overall well-being and quality of life.
Requirements of the Directive
a) Policy Requirements
The Directive mandates the establishment and implementation of a written policy on COVID-19 immunization that is aimed at supporting education and informed choice about COVID-19 vaccination. The immunization policy must apply to all staff, student placements, and volunteers, regardless of the frequency or duration of any period of time they attend the long-term care home.
All individuals subject to the COVID-19 immunization policy will be required to provide the long-term care home one of the following:
- Proof of COVID-19 vaccination after receipt of each required dose of a COVID-19 vaccine approved by Health Canada (or, where the individual has received the total required number of doses of a COVID-19 vaccine approved by Health Canada, proof of all required doses),
- Written proof of a medical reason, from either a physician or registered nurse in the extended class, that the individual cannot be vaccinated against COVID-19 including the effective time period for the medical reason, or
- Proof that the individual has completed an educational program approved by the long-term care home about the benefits of vaccination and the risks of not being vaccinated. The mandatory educational program will have to address, at a minimum, all of the following:
- how COVID-19 vaccines work,
- vaccine safety related to the development of the COVID-19 vaccines,
- the benefits of vaccination against COVID-19,
- the risks of not being vaccinated against COVID-19, and
- possible side effects of vaccination against COVID-19.
Helpfully, the province has indicated its intention to assist long-term care homes with this component of the Directive by identifying resources that can be used or built on to create the required educational program, though practical details on this initiative are still forthcoming.
Additionally, the Directive requires that the immunization policy be subject to enforcement. As a result, the immunization policy will have to clearly set out the consequences for individuals who fail to comply with one of the three available options, in accordance with any relevant human resources policies, collective agreements, and any applicable legislation, directives and policies.
Finally, the Directive also requires that the long-term care home ensure that the COVID-19 immunization policy be communicated to all staff, students, and volunteers of the long-term care home. A physical or electronic copy of the policy must also be made available to residents of the long-term care home or their substitute decision-makers at no cost.
b) Reporting Requirements
Besides the policy requirements detailed above, long-term care homes will also be required to track and report on the implementation of their COVID-19 immunization policies. Statistical information that will have to be provided to the Ministry of Long-Term Care, at a minimum on a monthly basis and in a manner as set out by the Ministry, will include:
- The total number of individuals subject to the long-term care home’s immunization policy for the reporting cycle,
- The total number of individuals who have submitted proof of immunization, as noted above, broken down by which type of proof was provided, and
- A breakdown of the number of individuals who submitted each type of proof who are staff, student placements or volunteers.
It is important to note that although overall staff immunization rates will have to be communicated to the province, the immunization status of individual staff members will not be shared with the province.
Application of Directive
The Directive will come into effect on July 1, 2021, meaning that the required policies will have to be implemented on or before that date.
The long-term care home’s policy must provide existing staff, student placements and volunteers up to 30 calendar days from July 1, 2021 to meet the applicable COVID-19 immunization policy requirements set out above. New staff, student placements, and volunteers will have 30 calendar days from their start date to do the same. That said, long-term care homes will be permitted to grant extensions of a reasonable duration to these time limits on a case-by-case basis where necessary due to unforeseen or extenuating circumstances outside the control of the subject individual.
Of note, where the effective time period of a medical reason for not being vaccinated expires during the currency of the Directive, the long-term care home must ensure, within 30 days of the medical reason expiring, that the subject individual provides the required proof of vaccination or proof that the individual completed an educational program.
Individuals who have provided the required proof that they have received the first dose of a two-dose COVID-19 vaccination series are considered to have met the requirements of the policy until such time as they are eligible for a second dose. Long-term care homes are required to collect proof of the individual’s second dose, or proof of a medical reason for not receiving it, or proof that the individual has completed an educational program. Long-term care homes are required to have a process in place for following up with individuals who have not yet received their second dose.
In Our View
The Minister’s Directive mandates long-term care homes to develop and fully implement COVID-19 staff immunization policies by July 1, 2021. Long-term care homes will also have to begin to review how they will track the required information to comply with their reporting obligations under the Directive in addition to how they will address issues with compliance in the workplace.
For information or advice on your rights and obligations as an employer dealing with COVID-19 or related issues including assistance in preparing your COVID-19 immunization policy and associated issues, please contact J.D. Sharp at 613-940-2739, Vicky Satta at 613-940-2753, Céline Delorme at 613-940-2763, Lynn Harnden at 613-940-2731 or Sébastien Huard at 613-940-2744.