Beginning December 10, 2021, the Ontario government (“Ontario”) has announced a number of updated COVID-19 public health measures amid concerns of rapidly rising case numbers, including an increase in cases of the new Omicron variant. These updated measures were announced as part of the province’s efforts to combat the spread of the Omicron variant, and include broadened eligibility requirements for booster shots, enhanced vaccination requirements, and more stringent capacity limits for certain businesses and facilities.
Expanded Age Groups for Booster Vaccine Eligibility
On December 15, 2021, Ontario announced that as of December 20, 2021, individuals who are 18 years of age and older and have received their second dose of a COVID-19 vaccine months at least three months prior to December 20, 2021 would be eligible to book an appointment for their booster vaccine.
Re-Introduced Capacity Limits and Additional Rules for Non-Essential Businesses and Facilities
On December 17, 2021, Ontario announced that as of December 19, 2021, capacity limits and additional rules would apply to certain non-essential businesses and facilities.
Capacity Limits
In particular, a 50% capacity limit has been introduced for the following indoor public settings:
- restaurants, bars and other food or drink establishments and strip clubs;
- personal care services;
- personal physical fitness trainers;
- retailers (including grocery stores and pharmacies);
- shopping malls;
- non-spectator areas of facilities used for sports and recreational fitness activities (e.g. gyms);
- indoor recreational amenities;
- indoor clubhouses at outdoor recreational amenities;
- tour and guide services;
- photography studios and services;
- marinas and boating clubs;
- facilities used for sports and recreational fitness activities;
- entertainment facilities such as concert venues, theatres and cinemas;
- racing venues;
- meeting and event spaces;
- studio audiences in commercial film and television production;
- museums, galleries, aquariums, zoos, science centres, landmarks, historic sites, botanical gardens and similar attractions;
- casinos, bingo halls and other gaming establishments; and
- fairs, rural exhibitions, and festivals.
Businesses or facilities that must abide these capacity limits must also post a sign in a conspicuous location visible to the public stating the maximum capacity limit they are permitted to operate under.
The capacity limits described above do not apply to any portion of a business or place that is being used for a wedding, a funeral or a religious service, rite, or ceremony.
Additional Rules
Additionally, the following rules applicable to non-essential businesses and facilities came into effect on December 19, 2021:
- the number of patrons permitted to sit at a table in a food or drink establishment or meeting and event space will be limited to ten people, and patrons will be required to remain seated;
- patrons must remain seated at concerts venues, theatres and cinemas;
- bars and restaurants and meeting and event spaces and strip clubs that serve food and drinks will be required to close by 11 p.m., though takeout and delivery services will be permitted to operate beyond 11 p.m.;
- singing and dancing in restaurants and bars and other select settings will not be allowed except for workers or performers;
- food and/or drink services will be prohibited at indoor sporting events; concert venues, theatres and cinemas; casinos, bingo halls and other gaming establishments; and horse racing tracks, car racing tracks and other similar venues. Food and drink establishments (including ones within the aforementioned establishments) can operate subject to the rules applicable to these settings, and at 50% capacity;
- the sale of alcohol will be restricted after 10 p.m., and consumption of alcohol in businesses or settings will be restricted after 11 p.m.
Reduced Limits for Social Gatherings
On December 17, 2021, Ontario also announced that as of December 19, 2021, social gathering limits for informal gatherings will be reduced to ten people indoors and 25 people outdoors.
Enhanced Proof of Vaccination Requirements
On December 10, 2021, Ontario announced that it would extend the requirement to show proof of vaccination in certain settings until further notice. The province previously planned to lift this requirement on January 17, 2022.
Further, as of January 4, 2022, enhanced vaccine certificates containing a valid QR code will be the only acceptable proof of vaccination for patrons to enter settings where such proof is required, and employers operating these settings will be required to use the Verify Ontario app to verify each code. The certificates can be presented digitally (e.g., on a person’s phone) or by printing a paper copy.
Additionally, as of December 15, 2021, Ontario began providing enhanced vaccine certificates to individuals with a valid medical exemption issued in Ontario or who are participating in an active, Health Canada-approved COVID-19 vaccine clinical trial.
Individuals with medical exemptions issued outside of Ontario will not be eligible to receive an enhanced vaccine certificate. Furthermore, organizations and businesses that are subject to the proof of vaccination requirements will be advised not to accept physicians’ notes as proof of medical exemptions beginning January 10, 2022.
Increased Rapid Antigen Testing in High-Risk Congregate Settings
On December 10, 2021, Ontario also announced that it would provide increased rapid antigen testing for high-risk congregate settings to protect vulnerable populations. This will include a requirement for all staff, essential caregivers, and visitors at long-term care homes who have recently traveled outside of Canada to complete antigen testing prior to entry, even if they are vaccinated.
Ontario will also update rapid antigen testing guidance for schools to begin threshold-based rapid antigen testing starting in January 2022, upon students’ return to school.
Recommendation to Work from Home
Notably, the Ontario government and Chief Medical Officer of Health have advised employers to allow their employees to work from home whenever possible, though there is currently no express legal requirement for employers to do so.
Takeaways for Employers
Employers who operate settings where proof of vaccination is required for entry must ensure that they continue enforcing these requirements beyond January 22, 2022, until the government lifts these restrictions. Moreover, such employers should begin updating their procedures and training staff on the new proof of vaccination requirements that will soon come into effect. This includes the requirements to only accept enhanced vaccine certificates with QR codes and to verify proof of vaccination with the Verify Ontario app beginning January 4, 2022, and to not accept physicians’ notes as proof of medical exemptions beginning January 10, 2022.
The new capacity limits for certain public indoor settings came into effect on December 19, 2021. Employers operating establishments that are subject to these capacity limits should ensure that they are follow such limits. Additionally, employers with holiday party plans in place may wish to re-evaluate such plans in light of new limits on social gatherings.
More broadly, in light of the recommendation for employees to work from home whenever possible, all Ontario employers should re-evaluate their return-to-work plans. Employers may wish to exercise caution before implementing any return-to-work plans for the new year, as the government may reimpose work-from-home requirements in the near future.
Similarly, all Ontario employers should consider communicating their expectations, recommendations, and/or requirements regarding booster vaccines to employees, given that far more employees will soon be eligible to receive them. Although employers should encourage their workers to receive booster vaccines as soon as possible, they should seek specific legal advice prior to requiring existing employees to receive booster vaccines because of the legal risks related to such requirements.
Finally, employers should continue to monitor COVID-related trends, including the spread of the Omicron variant, and keep an eye out for further government announcements regarding any additional changes to public health measures.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.