Recently, the Ministry of Health released a guidance document1 and a frequently asked questions document2 for businesses and organizations that are now required to ask patrons to demonstrate proof of their COVID-19 vaccination status. These documents outline the baseline requirements in accordance with section 2.1 of Schedule 1 of O. Reg. 364/20 (the "Regulation") under the Reopening Ontario (A Flexible Response to COVID-19) Act ("ROA"). The penalties for failing to comply with the requirements set out in the Regulation can be significant.3 The aim of this bulletin is to clarify what the rollout of the proof of vaccine regime will look like.
As of September 22, 2021, certain higher-risk indoor public settings4 must establish, implement, and ensure compliance with a COVID-19 vaccination policy that mandates patrons provide, at the point of entry, proof of identification and proof of full vaccination5 against COVID-19 before they can enter.
To ensure the protection of an individual's health information, a business or organization shall not retain any information provided by patrons pursuant to the Regulation.
The guidance document also states that photo identification is not required for proof of vaccination. Validation will be based on the name and date of birth listed on the identification document matching the name and date of birth listed on the vaccination receipt (paper copy or digital version). Expired government issued identification can be accepted if it is a Canadian passport or Ontario driver's licence, but there are some restrictions on accepting expired identification documents from interprovincial or international visitors.6
If the vaccination receipt or proof of identity document is in a language that a business or organization cannot use to verify the documents, it may request a translated copy in addition to the original vaccine receipt. Businesses and organizations are responsible for ensuring compliance with the requirements outlined in the Regulation. Patrons seeking entry to the business or organization are solely responsible for ensuring any information they provide demonstrating proof of vaccination (or proof of qualifying for an exemption) is complete and accurate as it relates to them.
However, regardless of their vaccination status, all Ontarians will continue to have access to necessary medical care, food from grocery stores, and basic medical supplies.
The Ontario Human Rights Commission has issued a policy statement7 regarding proof of COVID-19 vaccine mandates, which states that exempting individuals with a documented medical inability to receive the vaccine is a reasonable accommodation within the meaning of the Human Rights Code.
Consistent with the duty to accommodate, patrons of higher-risk indoor public settings who seek to rely on an exemption under the Regulation must provide a written document, supplied by a physician (designated as "MD") or by a registered nurse of the extended class (designated as "Registered Nurse (Extended Class)", "RN(EC)", "Nurse Practitioner" or "NP"). Businesses and organizations verifying whether a patron's written medical exemption document is valid must ensure it incudes:
- the name and contact information of the MD, RN(EC), or NP;
- a logo or letterhead identifying the MD, RN(EC), or NP;
- a statement that there is a medical reason for the individual's exemption for being fully vaccinated against COVID-19; and
- how long this exemption would apply.
It is anticipated that the written medical exemption document may be required until recognized medical exemptions can be integrated as part of an enhanced digital vaccine certificate (see below).
The Regulation does not require patrons with medical exemptions to show proof of a negative COVID-19 test for entry into higher-risk indoor public settings. The Ministry's rationale is that they anticipate a low number of people with medical exemptions will access these business or organizations and therefore permitting them entry will not significantly increase the risk of COVID-19 transmission in those settings. However, neither the Regulation nor the accompanying guidance documents prevent businesses and organizations from establishing additional policies or requirements pertaining to their patrons. It is yet to be seen if this unpredictability and inconsistency in application will be become an issue for those with a documented medical inability to receive the vaccine.
While the province is making strides towards a uniform application of the proof of vaccination regime, some exceptions exist.8 One unique exception is the time-limited testing exemption, which is in effect from September 22, 2021 to October 12, 2021. This exception permits patrons who are not fully vaccinated (and who do not qualify for a medical exemption) to attend an indoor social gathering, such as a reception at a conference or convention centre or place of worship if it is associated with a wedding service, rite or ceremony, or a funeral service, if the patron provides proof of a negative antigen test administered within the previous 48 hours to the person responsible for the establishment.
Beginning October 22, 2021, Ontario plans to implement an enhanced digital vaccine certificate for smartphones and an accompanying verification app to make it easier for businesses and organizations to confirm proof of vaccination. The enhanced certificate will include a Quick Response ("QR") code that allows users to securely verify their vaccination status when scanned. Once launched, the enhanced certificate can be downloaded and printed to present as a paper copy, or it can be presented as a digital copy.
Older versions of the provincial vaccine receipt will continue to be accepted as proof of vaccination.
It is anticipated that out of province and international visitors to Ontario will not be able to download the enhanced certificate. It is expected that other provinces that implement digital vaccine certificates with QR codes will eventually be compatible with Ontario's verification app for business.
The Ministry's guidance documents are subject to updates as required by changes in the number of COVID-19 cases and developments in public health advice and direction. It will be important to stay informed about any subsequent changes to this regime.
3. Failing to comply with the requirements of O. Reg. 364/20 or obstructing any person performing a duty in accordance with the requirements of O. Reg. 364/20 can result in charges under the ROA. Maximum penalties based on a prosecution under Part I or Part II of the Provincial Offences Act include fines of up to $100,000 and up to one year in jail for an individual; up to $500,000 and up to one year in jail for an individual who is a director or officer of a corporation; and up to $10 million for a corporation.
4. Examples include: indoor dining, nightclubs, conference or convention centres, gyms, casinos, cinemas, concert venues, strip clubs and race tracks. For full list of indoor areas that require patrons to provide proof of vaccination status see section 2.1(2) of Schedule 1 to O. Reg. 364/20.
5. The guidance document considers an individual fully vaccinated if they have received:
- The full series of a COVID-19 vaccine authorized by Health Canada, or any combination of such vaccines, or
- One or two doses of a COVID-19 vaccine not authorized by Health Canada, followed by one dose of a COVID-19 mRNA vaccine authorized by Health Canada, or
- Three doses of a COVID-19 vaccine not authorized by Health Canada; and
- They received their final dose of the COVID-19 vaccine at least 14 days before providing the proof of being fully vaccinated.
6. Ontario residents may present an
expired government-issued identification such as a driver's
licence or passport. Interprovincial travellers may present an
expired passport, but not expired provincial documents. Visitors
from abroad may not present any expired identification
Inconsistency in application may become an issue.
8. See, for example, the list of patrons that businesses or organizations are exempt from requiring proof of vaccination status from in section 2.1(6) of Schedule 1 to O. Reg. 364/20.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.