By Barry W. Kwasniewski 

Ontario’s Deemed Infectious Disease Emergency Leave for Workplaces Extended

The Government of Ontario has again extended the availability of Infectious Disease Emergency Leave (“IDEL”) under the Ontario Employment Standards Act, 2000 (“ESA”), which will continue to provide unpaid, job-protected leave during the COVID-19 pandemic to employers and employees in Ontario. IDEL, which was previously extended until July 3, 2021, as discussed in the January 2021 Charity & NFP Law Update, will now be available until September 25, 2021. Ontario Regulation 412/21 was filed on June 4, 2021 to extend the “COVID-19 Period” in Ontario Regulation 228/20, Infection Disease Emergency Leave and under section 50.1 of the ESA.

The extension of the COVID-19 period means that non-unionized employees who have been temporarily laid off due to an infectious disease emergency, such as the COVID-19 pandemic, will not be deemed to be laid off or constructively dismissed, but instead will be deemed to be on IDEL until September 25, 2021, providing them with unpaid by job-protected leave during the pandemic. According to the Government of Ontario, as of September 26, 2021, employees on IDEL will no longer be deemed to be on unpaid IDEL, and the regular rules concerning constructive dismissal and temporary layoffs under the ESA will resume. Please see Charity & NFP Law Bulletin No. 497 below regarding recent court decisions regarding deemed IDEL and constructive dismissal actions.

July 1st mandatory immunization policy for Ontario long-term care homes

A new government directive for long-term care homes in Ontario requires either proof of COVID-19 vaccination, a documented medical exemption, or participation in a vaccine education program. The Ministry of Long-term Care published the directive on May 31, 2021, and it will be effective starting July 1, 2021 (the “Directive”). Under section 174.1(1) of the Long-Term Care Homes Act, 2007 (the “Act), the Minister “may issue operational or policy directives respecting long-term care homes where the Minister considers it to be in the public interest to do so.” The Directive’s stated objectives are to:

• set out a provincially consistent approach to COVID-19 immunization policies in long-term care homes
• optimize COVID-19 immunization rates in long-term care homes
• ensure that individuals have access to information required to make informed decisions about COVID-19 vaccination

Accordingly, the Directive will require that all staff, student placements and volunteers in Ontario long-term care homes provide at least one of the following three options:

1. Proof of COVID-19 vaccine administration as per the following requirements:
   1. if the individual has only received the first dose of a two-dose COVID-19 vaccination series approved by Health Canada, proof that the first dose was administered and, as soon as reasonably possible, proof of administration of the second dose or
   2. if the individual has received the total required number of doses of a COVID-19 vaccine approved by Health Canada, proof of all required doses
2. Written proof of a medical reason, provided by either a physician or registered nurse in the extended class, that sets out:
   1. that the person cannot be vaccinated against COVID-19 and
   2. the effective time period for the medical reason
3. Proof that the individual has completed an educational program approved by the licensee that addresses, at a minimum, all of the following:
   1. how COVID-19 vaccines work
   2. vaccine safety related to the development of the COVID-19 vaccines
   3. the benefits of vaccination against COVID-19
   4. risks of not being vaccinated against COVID-19
   5. possible side effects of COVID-19 vaccination

Licensees under the Act are responsible for ensuring that the policy applies to staff, student placements and volunteers “regardless of the frequency with which they attend the home and regardless of the duration of any period of time they attend the home.” The requirements of the Directive must be met within 30 days for existing workers from July 1, 2021 or the first date that staff, student placements and volunteers attend the long-term-care home for work. Every licensee must provide a written policy to enforce the Directive, ensure it is communicated to workers, and make it available to residents. Consequences for not meeting the requirements must be clearly set out in the policy “in accordance with the licensee’s human resources policies, collective agreements and any applicable legislation, directives and policies.”

The Directive also requires licensees to “collect, maintain, and disclose to the Ministry of Long-Term Care, at a minimum on a monthly basis and in a manner set out by the ministry”, statistical information: the total number of individuals subject to the long-term care home’s policy for the reporting cycle; the total number of individuals who have submitted the proof as per the requirements, broken down by which type of proof was provided; and for each type of proof, the number of individuals who submitted each type of proof who are staff, student placements or volunteers.

The Ministry “may share any and all statistical information provided by licensees pursuant to this Directive with the Ministry of Health or local public health units at any time.”

Read the June 2021 Charity & NFP Law Update