As Ontario struggles with the Omicron variant of COVID-19, employers must ensure their workplace policies are updated to reflect the changing nature of the pandemic. Policies enacted in 2020, or even just a few months ago, may no longer reflect current public health guidance. As such, in this article, we look at three recent pandemic-related developments and assess how they will impact Ontario employers.
Boosters
Effective December 20, 2021, Ontarians aged 18 and up became eligible to receive a booster dose of an approved COVID-19 vaccine.
For employers, the introduction of boosters raises a challenge. Many organizations have already instituted COVID-19 vaccination policies which rely upon a specific definition of what it means to be “fully vaccinated.” Typically, these definitions have been taken from those provided by public health authorities (such as this one issued by the Ontario Ministry of Health on September 14, 2021).
As recently as December 20, 2021, the Public Health Agency of Canada (“PHAC”) confirmed that it had not updated its definition of “fully vaccinated” to include having received a booster dose. That said, considering how vigorously boosters are being distributed and promoted, it seems a safe bet that revised definitions of what it means to be “fully vaccinated” will be issued by public health authorities soon.
Accordingly, now is the time for employers to consider how existing vaccination policies will be adapted to address booster shots. A variety of questions must be answered as part of this process. These include:
- Will your organization require workers to receive a booster dose or disclose their booster status?
- If so, what timeline will be specified to obtain a booster shot and/or disclose booster status?
- What will happen to workers who, to date, have been considered “fully vaccinated” yet decline to get a booster shot and/or refuse to disclose their booster status?
Employers should be prepared to continue revising their vaccination policies, and the definition of what constitutes being “fully vaccinated,” on an ongoing basis. Even now, Ontario has already started rolling out second booster doses to vulnerable populations, including those living in long term care and retirement homes.
Masks
Mask usage is mandatory in a large variety of indoor settings (including workplaces) across Ontario. As such, all employers should currently have in place some form of a staff mask policy.
The focus has now shifted to mask quality. Indeed, when mask mandates were first instituted by differing levels of government, a very low standard was required: masks needed only be some manner of single layer cloth covering that securely protected the nose, mouth, and chin. PHAC has since updated its recommendations to indicate Canadians should employ masks with at least three layers, including:
- at least 2 layers of breathable tightly woven fabric, such as cotton; and
- an effective middle filter layer.
PHAC further recommends that medical masks (such as N95 respirators) be used by individuals who are at high risk of severe health outcomes or face greater exposure to COVID-19 due to the nature of their living or work environments.
Employers should take this opportunity to review their existing mask policies, and in particular, the level of mask quality required. Mandating the use of simple, single layer, facial coverings is now unlikely to meet an organization’s duty of care to its workers. As such, employers should ensure that they are requiring (and providing) masks of a quality at least in line with current public health recommendations, having specific reference to the operational realities (and risks) of their unique workspaces.
Testing
One of the side effects of the surge in COVID-19 cases across Canada has been a massive increase in the demand for testing. This has resulted in shortages of rapid antigen test kits and restrictions in the availability of publicly funded PCR tests.
The limitation of widespread access to effective and reliable COVID-19 testing is a fact that may impact a variety of employer policies, including:
- Return to work protocols – many employers have, to date, required proof of a negative test result prior to allowing employees with COVID-19 (or showing symptoms thereof) to return to work. These policies may need to be revised considering limited testing options. Alternative measures could include providing employer-paid testing, such as those offered (for a fee) by private clinics, or dropping negative test requirements altogether in favour of staff self-isolation protocols, applicable for a prescribed time period, as mandated by public health authorities.
- Access to benefits – employers will need to consider the level of evidence required to access employee health benefits (such as sick leave or short-term disability). If employees are, through no fault of their own, unable to access the tools they need to prove illness, employers should consider alternative evidentiary standards or instituting new qualification criteria. This could include self-reporting and attestation systems, symptom-based documentation and evaluation, or other similar measures.
Takeaway
We had all hoped to have seen the end of the pandemic by now. But so long as COVID-19 remains with us, employers must continue to stay up to date on the latest public health guidance and adapt their workplace policies accordingly. Flexibility should be your watchword. Finally, remember that any policy is only as good as its implementation. Once updated, policies should be clearly communicated, and their terms applied fairly and consistently.
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I know this is going to ruffle some feathers, but I am of the opinion if an employee refuses to get vaccinated, just because they do not want to, the employee should be terminated without cause and paid their “Reasonable Notice” of termination if their employment contract does not contain a clause limiting common law entitlements. The Record of Employment should also state employee refused to get vaccinated at the time of termination. Safety of all employees should over ride what one individual wants or does not want to do, the “entitlement” attitude.