As of July 1, 2021, all Ontario long-term care homes must implement COVID-19 immunization policies for their staff, students, and volunteers — regardless of the frequency or duration of these individuals’ attendance in a home. Current staff, students, and volunteers will have until July 31, 2021 to meet the policy requirements, subject to reasonable extension for unforeseen circumstances. Newly hired individuals will have 30 days from the first day they begin attending at the home.
The move comes after the Ministry of Long-Term issued a Directive under section 174.1 of the Long-Term Care Homes Act, 2007in late May. The Directive aims to set out a provincially consistent approach to COVID-19 immunization policies and optimize immunization rates within long-term care homes.
At a minimum, long-term care homes must implement a policy that requires staff, students, and volunteers to provide one of the following:
Licensees must clearly set out the consequences for individuals who fail to provide proof for one of the three requirements. However, the province has left each licensee to determine these consequences in accordance with the licensee’s human resources policies, collective agreements, and any applicable legislation, directives, and policies. This means licensees are left to navigate their obligations under various acts including the Human Rights Code, Employment Standards Act, 2000, and the Occupational Health and Safety Act.
Licensees will also have to track and report monthly to the Ministry of Long-Term Care on their policy implementation status and immunization rates. The province wants to know the total number of individuals subject to the policy, a break down of which type of proof was provided, and for each type of proof, the number of staff, students, or volunteers. It will be interesting to see what trends materialize once the data starts rolling in.
These policies will need to be crafted carefully because provisions for those who cannot be vaccinated because of underlying health issues and for those who object to vaccination on bona fide religious or conscientious objection grounds will need to be addressed. This is important as long-term care homes acting under a mandatory government directive can be open to a Charterchallenge — for example, under section 7 of the Canadian Charter of Rights and Freedoms, which protects an individual’s right to life, liberty, or security of the person. Employers in other settings who may choose to implement similar policies would likely face challenges under labour laws rather the Charter, which rarely applies to private non-governmental actors.
The Directive is the first time the province has taken steps towards making vaccines against COVID-19 mandatory and it remains to be seen whether the province will enact similar rules across different public and private health care settings.
In recent weeks, the CPSO has placed restrictions on the certificates of practice of certain physicians, banning them from providing medical exemptions in relation to COVID-19 vaccinations, mandatory mask requirements and testing for COVID-19.
On October 27, 2021, the CPSO suspended one physician from practice entirely related to such activity.
How is the CPSO able to take such action?
It is no surprise that the COVID-19 pandemic continues to affect the delivery of health services and the regulation of various health professions.
In a welcomed move, the College of Physicians and Surgeons of Ontario (CPSO) Council recently approved a new registration policy allowing the Registration Committee to issue a Certificate of Registration authorizing Independent Practice to applicants who have not completed Part II of the Medical Council of Canada Qualifying Examination (MCCQE).
The test for the standard of care in medical negligence cases has remained untouched since the Supreme Court of Canada’s 1995 decision in ter Neuzen v. Korn.
On January 18, 2021, the Supreme Court of Canada heard the appeal in Armstrong v. Ward. Their unanimous decision maintains the status quo with respect to the standard of care in medical negligence cases.