On October 6, 2021, the federal government announced mandatory vaccination requirements for the federal workforce and for federally regulated transportation employees and travellers.
Mandatory Vaccination for the Federal Workforce
The new mandatory vaccination requirements will apply to federal public servants in the core public administration, including members and reservists in the Royal Canadian Mounted Police (“RCMP”). The core public administration includes those departments and organizations listed in Schedules I and IV of the Financial Administration Act (“FAA”).
Crown corporations and separate agencies are also being asked to put in place vaccine policies that mirror the requirements applicable to the core public administration. The Acting Chief of the Defence Staff will issue a mandatory vaccination requirement applicable to the Canadian Armed Forces.
While other federally regulated employers (aside from those in the federally regulated transportation sector) are not covered by the announced requirements, the government noted that it will continue to work with employers in other federally regulated workplaces to ensure that vaccination is prioritized.
Vaccination and Disclosure Requirements
Public servants who are not fully vaccinated or who do not disclose their vaccination status will be placed on administrative leave without pay as early as November 15, 2021. The vaccination requirement applies to employees even if they are teleworking or working remotely. Employees who cannot be vaccinated based on a protected ground under the Canadian Human Rights Act can request accommodation.
Employees will be onboarded in phases to a secure online system through which they can provide their vaccine attestation. The process will begin on October 6, 2021, and the deadline for providing the attestation is October 29, 2021.
The vaccination requirements for public servants are outlined in a new Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police (the “Policy”). The Policy is issued pursuant to the FAA and takes effect on October 6, 2021. It applies to interchange participants and volunteers, but not locally engaged staff at missions abroad or members of the Canadian Armed Forces. As noted above, the Acting Chief of the Defence Staff will issue a directive that will apply to the Canadian Armed Forces.
Deputy Heads are responsible for implementing the Policy, and have the power to conduct audits on attestations and consent forms. Managers are responsible for reviewing attestations and associated data or information, validating that the information complies with the requirements, and responding to accommodation requests.
Employees are responsible for providing truthful information, accurately disclosing their vaccination and testing status, informing their manager of a need for accommodation, and attending required training. Employees must not harass or engage in any other prohibited conduct towards another individual for reasons such as vaccination status or accommodation measures.
Employees who are not fully vaccinated or who refuse to disclose their vaccination status will be required, within two weeks of the attestation deadline, to attend an online training session on COVID-19 vaccination. Two weeks after the attestation deadline, non-compliant employees will be placed on administrative leave without pay and access to the workplace, off-site visits, business travel, and conferences will be restricted.
Employees on leave without pay who subsequently become partially vaccinated will be able to have their pay reinstated and resume work. If a partially vaccinated employee has not received their second dose within ten weeks following the first dose, they will be placed on leave without pay. Temporary measures may apply to partially vaccinated individuals for the period during which they remain partially vaccinated.
The Policy provides that the Chief Human Resources Officer can direct Deputy Heads to take appropriate action to address issues of non-compliance, or to impose any other appropriate measures to assess whether the Policy requirements are being met.
Mandatory Vaccination for Federally Regulated Transportation Employees and Travellers
Federally Regulated Transportation Employees
Employers in the federally regulated air, rail, and marine transportation sectors must establish vaccination policies for their employees by October 30, 2021. The requirement applies to:
- Airlines, designated airports, and other organizations who have employees who enter restricted areas of designated airports, such as concession and hospitality workers;
- Federally regulated railways, and their rail crew and track employees; and
- Marine operators with Canadian vessels that operate with twelve or more crew.
The vaccination policy must, at a minimum:
- Include a provision for employee attestation/declaration of their vaccination status;
- Include a description of consequences for employees who do not comply or who falsify information; and
- Meet standards consistent with the approach taken by the Government of Canada for the core public administration (i.e. as per the Policy discussed above).
After a short phase-in period, covered organizations must guarantee that employees are fully vaccinated, failing which they will not be permitted to work.
Transport Canada will use its regulatory and oversight authority in relation to federally regulated air, rail, and marine transportation service providers to ensure compliance with vaccine mandates.
Federally Regulated Travellers
Effective October 30, 2021, the following individuals aged twelve and over must be fully vaccinated to travel:
- Air passengers flying on domestic, transborder, or international flights departing from designated airports in Canada;
- Rail passengers on VIA Rail and Rocky Mountaineer trains; and
- Marine passengers on non-essential passenger vessels, such as cruise ships, on voyages of 24 hours or more.
Individuals must declare their vaccination status and provide documentation before boarding.
There will be a temporary transition period in place until November 30, 2021, for individuals in the process of being vaccinated. During that temporary period, travellers can show a valid COVID-19 molecular test within 72 hours of travel. After that time, there will be very limited exceptions to the vaccination requirement, to address specific situations such as emergency travel or a medical inability to be vaccinated.
The vaccination requirement will also make specific accommodation for travellers from small, remote communities to ensure that they can travel to obtain essential services for their medical, health, or social well-being and safely return home. Engagement with Indigenous organizations and provinces and territories will take place to address this accommodation.
Transport Canada will oversee compliance through inspections and enforcement tools, including Administrative Monetary Penalties. Providing false information or failing to comply may result in consequences including the following:
- Railway companies could be subjected to compliance actions up to $250,000 per violation, per day, under the Railway Safety Act;
- In the air sector, travellers and employees could be fined up to $5,000 per violation under the Aeronautics Act, and operators could be fined up to $25,000 per violation; and
- In the marine sector, employees and travellers could be fined for non-compliance with the obligation to provide proof of vaccination up to $250,000 per violation, per day, and operators could be fined up to $250,000 per violation, per day, for non-compliance with the Interim Order made pursuant to the Canada Shipping Act, 2001.
Pan-Canadian Proof of Vaccination
The government indicated that a secure pan-Canadian standardized proof of vaccination for international travel is being developed in partnership with the provinces and territories. This document will be available in a digital format; however, no specific release date was noted.
In Our View
These requirements have been expected since the government announced them this past August. They will provide greater protections for employees in the covered workplaces and for travellers. However, they may also create staffing or labour relations issues in workplaces where employees refuse vaccination without valid exemptions.
Employers in the federally regulated transportation sector must establish and enforce a mandatory vaccination policy, and will need to train their employees to screen passengers in relation to these new requirements. The specific requirements of these policies are expected in the coming weeks.
Although federally regulated employers outside of the transportation sector and aside from Crown corporations and separate agencies are not bound by these requirements, the government has indicated its expectation that these employers will also prioritize vaccination. Such employers will therefore have to determine the appropriate approach to take to vaccination in their own workplaces, and how closely they wish to replicate the above requirements.