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Mandatory COVID-19 vaccination in Canada: what are the new rules?

Written by
Mathews Dinsdale, Canada’s only national labour and employment law firm.
Authors
Jessica Moldaver
Associate - Canada
Mathews Dinsdale
Cheryl A. Edwards
Cheryl A. Edwards
Partner - Canada
Mathews Dinsdale
Canada
18.10.21
4
Canada has announced new, wide-ranging mandatory vaccine measures for air, marine and rail travellers, some federal public servants, and some federal employers.

On 6 October 2021, the Canadian Federal Government announced much-anticipated, wide ranging new mandatory vaccine measures. Unless an exemption applies:

  • Workers in the Core Public Administration must attest to being fully vaccinated by 29 October 2021 or face measures, up to and including unpaid leave of absence.
  • Federally regulated transportation sector employers in air, airport, airport service, rail and railway service, and specified marine operations must implement equivalent policies with vaccination attestations and other measures by 30 October 2021.
  • Effective 30 October 2021, passengers will also require proof of full vaccination to travel by air (domestically and internationally) from Canadian airports, and on specified federally regulated Canadian train and marine services.
New federal policy on COVID-19 vaccination

Under the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police, all federal public servants in the Core Public Administration (which includes Schedule I and Schedule IV departments under the Financial Administration Act), and the RCMP, must provide an attestation as to their full vaccination status by 29 October 2021. This mandate applies to all employees, including those who are teleworking, working remotely or attending government offices. Contractors who require access to federal government worksites to perform work must also be fully vaccinated, as must some internationally based public servants (based on Global Affairs Canada guidelines).

The Policy will not apply to members of the public receiving services (e.g. Service Canada, Veterans Affairs Canada, Canada Revenue Agency) or members of the Canadian Armed Forces although the Department of National Defence is expected to issue a similar directive. Likewise, Crown Corporations (such as Canada Post, CBC/ Radio Canada) and separate Agencies are being asked to implement their own policies, which are expected to reflect this federal mandate. The Canadian government has indicated it will work with all federally regulated workplaces to ensure vaccination is prioritised for their workers.

What is expected of Core Federal Employees

The Policy for the Core federal Public Administration will initially require an attestation by all employees as to their full vaccination status. The attestation deadline is set for 29 October 2021. Employees are required to submit their attestation, or a request for accommodation on medical or human rights related grounds, through the Government of Canada Vaccine Attestation Tracking System (‘GC-VATS’). The Government has indicated that attestations will be audited and managers can ask for proof of vaccination at any time. If an attestation is found to be false, the employee may face discipline up to the point of termination.

Employees who are unable to be vaccinated due to prohibited grounds under the Canadian Human Rights Act, such as a medical contraindication, are able to request accommodation through the GC-VATS and must provide supporting documentation to their manager before the attestation deadline. Affected employees who are not fully vaccinated, or do not attest to their vaccination status by 29 October 2021, will face measures, including restrictions from entering or accessing the workplace, and may be placed on administrative leave without pay as early as 15 November 2021. Provisions are made for educating employees, before the attestation deadline. For employees who are partially vaccinated by the deadline, an additional period of ten weeks is provided to complete full vaccination.

All measures for employees are being implemented to meet the objective of taking every reasonable precaution for the protection of employee safety, and to improve the vaccination rate across Canada of employees in the Core Public Administration. All employees (with narrow permitted exceptions) must be vaccinated to protect themselves, colleagues and clients from COVID-19.

Requirements for Federal Transportation Employers

The Government of Canada is also requiring employers in the federally regulated air, rail, and marine transportation sectors, through Transport Canada oversight and regulation, to establish vaccination policies, by October 30, 2021 to ensure their employees are vaccinated. The mandate for federally regulated transportation sectors, according to the announcement made, will apply specifically to:

  • airlines and airports, and other organisations who have employees who enter restricted areas of airports, such as concession and hospitality workers;
  • federally regulated railways, and their rail crew and track employees; and
  • marine operators with Canadian vessels that operate with 12 or more crew.

 

All employers operating in these sectors will be required to implement similar rigorous vaccination policies, which must:

  • include a provision for employee attestation/declaration of their vaccination status;
  • include a description of consequences for employees who do not comply or who falsify information; and
  • meet standards consistent with the approach taken by the Government of Canada for the Core Public Administration.

 

From the announcements made it appears that other federally regulated employers who do not fit into the categories above (interprovincial road transportation and shipping for example) are not impacted by these requirements, and are thus not expressly required to implement policies. They are, however, being strongly encouraged to implement similar policies.

Requirements for Canadian air, rail and marine travellers

The Government announced its commitment to keeping travellers safe and secure, in addition to employees in the transportation sector. Vaccine requirements will be applied very shortly, effective 30 October 2021, to Canadian air, marine and rail travellers aged 12 and older. All air passengers flying on domestic, trans-border, or international flights departing from Canadian airports, passengers on VIA Rail and Rocky Mountaineer trains, and marine passengers on non-essential passenger vessels, such as cruise ships, on voyages of 24 hours or more will be required to be fully vaccinated in order to travel after 30 October 2021. A short grace period will apply for travellers in the process of becoming fully vaccinated, with additional testing requirements (a molecular test within 72 hours of travel) being permitted. This will end 30 November 2021. Exceptions will only exist for emergency travel, and those medically unable to be vaccinated.

Expected enforcement

Enforcement will be stringent. It has been announced that Transport Canada will oversee federal transportation employer compliance through inspections and enforcement, including Administrative Monetary Penalties, which may be imposed without any formal court process, for violations. Travellers could also be subject to fines under the Aeronautics Act, or the Railways Act, for example for failing to provide proof of vaccination, or falsifying vaccination records.

 

The authors gratefully acknowledge the assistance of Erica Herman, an Articling Student in the firm’s Toronto office.