Ontario recently announced that, as of September 22, 2021, patrons will be required to provide proof of vaccination, also known as a vaccine passport, to access certain businesses and settings. Vaccine passports are intended to protect employers and employees by requiring patrons to provide proof of vaccination. Importantly, the vaccine passport regime does not apply to employees, as it is intended to create guidelines for how employers and employees interact with the public, not employers and their employees.

Employers can ensure their employees are vaccinated by implementing mandatory vaccination policies. Ontario now requires that certain businesses and settings, such as hospitals and schools, implement mandatory vaccination policies. Many employers are implementing vaccination policies on their own volition, while other employers, such as those in in high risk settings, have been required by law to implement vaccination policies.

Through this approach, employers can ensure a safe workplace for their employees, with vaccine passports protecting employees from unvaccinated members of the public, and mandatory vaccination policies protecting employees from unvaccinated employees.

How to determine if your workplace is affected by vaccine passports

Proof of vaccination is required for patrons to access many settings, such as:

• Restaurants and bars (excluding outdoor patios, as well as delivery and takeout);
• Nightclubs (including outdoor areas of the establishment); and
• Sporting events.

Full vaccination and proof of vaccination are not required in settings where people receive medical care, food from grocery stores, medical supplies, and the like. There are also exemptions, such as:

• Customers accessing the business or setting solely to use a washroom, make a retail purchase, or pick up a takeout order;
• Children under the age of 12; and
• Customers who provide a written document that has been provided by a physician or registered nurse that states they are exempt for a medical reason from being fully vaccinated against COVID-19.

Enforcement and responsibilities in the workplace

Enforcing vaccine passports is simple in theory: patrons cannot access the business or setting without proof of vaccination. However, the burden is on businesses to ensure that patrons provide, at the point of entry, photo identification and proof of vaccination. Businesses may have some issues initially, as Ontario has not yet developed a vaccine certificate. This means that businesses will be required to ask for a patron’s vaccination receipt and photo identification. Many business owners are, understandably, frustrated at the prospect of dealing with the inevitable flood of fake proof of vaccination and exemption documents. Thankfully, Ontario has indicated that an “enhanced vaccine certificate” with a unique QR code and verification app would be available by October 22, 2021.

In the meantime, on September 14, 2021, Ontario released the regulations and guidance for workplaces to better understand how to implement the proof of vaccination requirements. The guidance document provides helpful information about the vaccine certification process. The guidance document further notes law enforcement should be contacted in the event of harassment or threats of acts of violence.

Ultimately, this means that individuals must be fully vaccinated and provide proof of vaccination before entering many settings. If your workplace falls outside of Ontario’s proof of vaccination policy, you are still permitted to refuse service to individuals who are unvaccinated, subject to an important caveat: businesses in Ontario are subject to Ontario’s Human Rights Code (“Code”), and therefore cannot refuse service on discriminatory grounds. While vaccination status is not a protected ground, the reason someone is unvaccinated could be, for example, if they have a disability preventing them from being vaccinated. If so, refusing them service could be viewed as discrimination under the Code.

Penalty for failure to enforce vaccine passports

Failure to comply with the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, including the failure to enforce vaccine passports, could result in a business being fined. If charged under Part I of the Provincial Offenses Act (“POA”), fine amounts are $750 for individuals and $1,000 for corporations.

Maximum penalties based on a prosecution under Part I or Part II of the POA include fines of up to $100,000 and up to a year in jail for an individual; up to $500,000 and up to a year in jail for an individual who is a director or officer of a corporation; and up to $10 million for a corporation.

The Hum Law Firm continues to monitor legal developments related to COVID-19. We encourage you to contact us immediately for legal assistance.

Call us at (416)214-2329 or email info@thehumlawfirm.ca

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