By November 15 – which is now right around the corner – Transport Canada will require by way of ministerial orders that employers in the federally regulated air, marine and rail transportation sectors be able to confirm the implementation of a mandatory vaccination policy, failing which enforcement tools, such as administrative monetary penalties, may apply. Though requirements vary between industries, the following provides a high-level resource on what you need to know to ensure compliance with vaccination policy requirements in affected transportation industries as soon as possible.
Who must have a policy and by when?
- In the air industry, operators of aerodromes1, air carriers2, and NAV CANADA3. Policies and information related to their implementation must be made available to the Minister of Transport (Minister) on request.
- In the marine industry4, Canadian vessels that belong to a fleet that has a vessel with 12 or more crew members, in any waters; and cruise ships that are Canadian vessels operated in any waters, and foreign vessels operated in Canadian waters.5 Beginning on November 15, 2021, a copy of the vaccination policy must be kept on board and made available to the Minister on request. Crew members on board must be familiar with the content of the vaccination policy, and a record indicating the crew members have familiarized themselves with the policy must also be kept on board. By this date, or, if after November 15, by the day on which the vessel or cruise ship begins operating, written confirmation on the implementation of a compliant vaccination policy must be provided to the Minister. In addition, information related to the implementation of the vaccination policy must be made available to the Minister on his or her request. Finally, it should be noted that port authorities governed by the Canada Marine Act have also been asked by the Minister to implement vaccination policies.
- In the rail industry, railway companies6 can choose between implementing a company-wide vaccination policy, or complying with prescribed sections of the applicable ministerial order. Where a policy is implemented, it must be communicated to employees and filed with the Minister before November 15, 20217. Any changes made thereafter must be communicated to employees and filed with the Minister prior to their implementation.
To whom must the policy apply?
- Air: For aerodromes, vaccination policies apply to persons 12 years and four months of age or older, other than those who (i) intend to board an aircraft for a flight that an air carrier operates; (ii) do not intend to board an aircraft for a flight and who are accessing aerodrome property for leisure purposes or to accompany a person who intends to board an aircraft for a flight, or (iii) are holders of an employee identification document issued by a listed department or departmental corporation. For air carriers and NAV CANADA, vaccination policies extend to (i) employees; (ii) employees of contractors, agents or mandataries; (iii) persons hired to provide a service; (iv) lessees or their employees, if the property that is subject to the lease is part of aerodrome property; and (v) persons permitted to access aerodrome property or, in the case of NAV CANADA, a location where NAV CANADA provides civil air navigation services. Policies apply to those (i) conducting or directly supporting activities related to commercial flight operations and that take place on aerodrome property or at a location where NAV CANADA provides civil air navigation services; (ii) interacting in-person on aerodrome property with a person who intends to board an aircraft for a flight; (iii) engaging in tasks, on aerodrome property or at a location where NAV CANADA provides civil air navigation services, that are intended to reduce the risk of transmission of COVID-19; and (iv) accessing a restricted area at an aerodrome. It should be noted that air carriers and NAV Canada are not required to adopt a vaccination policy for the above-listed persons if he or she is a holder of an employee identification document issued by a department or departmental corporation.
- Marine: Vaccination policies of vessels must cover marine pilots as understood under the Pilotage Act (who must be employed by ships over a certain size to navigate through Canadian waters, or US waters under certain circumstances) and every person on board, save passengers. For their part, Canadian port authorities have been asked to implement a policy for their employees, contractors and tenants.
- Rail: Vaccination policies must relate to employees of railway companies who are not on leave.
What must policies include… and what is optional?
Though specific requirements vary per industry, vaccination policies should generally address:
- Mandatory proof of vaccination: In the marine and rail industries, policies must generally require proof, in French or English, of partial vaccination (first dose) by no later than November 15, 2021, and full vaccination by no later than January 24, 2022. As for air, proof of full vaccination in either official language is required by November 15, 2021.
- Exemptions from providing proof of vaccination: In all three industries, policies must contain an exemption from providing proof of vaccination for those who are unvaccinated due to a medical contraindication, or their sincerely held religious beliefs as understood under the Canadian Human Rights Act or other applicable legislation. For an exemption based on a medical contraindication, supporting documentation, such as a medical certificate, must be submitted. Policies do not have to specify who would pay for the medical certificate, though they are not barred from doing so. For an exemption to be granted based on sincerely held religious beliefs, policies in the marine industry must require evidence of such beliefs. In the air and rail industries, an attestation, sworn by the employee, that he or she has not completed a COVID-19 vaccination regime due to sincerely held religious beliefs is required.
- Molecular testing: Policies must provide a procedure for the molecular testing of those who are non-vaccinated or not fully vaccinated. Though not required, vaccination policies may include guidance on who pays for the molecular tests.
- Positive test results: Policies must contain a procedure for addressing positive test results, the details of which vary depending on the industry and in some cases the employer.
- Collection, use and disclosure of certain information: Policies must include a procedure for the collection, use and disclosure of certain information. This may, for instance, include information related to proof of vaccination, molecular test results, and interactions between vaccinated and non-vaccinated persons.
- Reporting or notice requirements to the Minister: Entities must report or give notice of certain prescribed information related to the vaccination policy to the Minister. Specific requirements differ from one industry to another.
- Vaccination leave: Of note, policies in all industries do not appear to be required to provide workers with any paid or unpaid time off to get vaccinated. However, employers could see employees entitled to sick or personal days under federal laws or their collective agreement request time off for vaccination purposes.
- Consequences for non-compliance: Interestingly, only the rail industry requires that policies expressly include leave without pay as the sanction applicable to employees refusing vaccination and do not fall within the two above-noted exceptions. In the marine industry, policies must include “consequences” for non-compliance, though leave without pay is not specifically mentioned.
- Other requirements: It should be noted that vaccination policies are also subject to further varying requirements, depending on the industry and employer. For more on how they may apply to your business or industry, seeking legal counsel is encouraged.
The approach in the federally regulated air, marine and rail industries is consistent with the government’s approach in other federal areas, including the federal public service, Parliament, and Crown corporations. Indeed, the government’s intent appears clear: to promote the implementation of vaccination policies for federally regulated businesses and workplaces, and to minimize exceptions to the requirement to provide proof of vaccination.
In some cases, however, it should be noted that the applicable ministerial orders mandating the implementation of mandatory vaccination policies may appear far-reaching. For example, while federal employers may comply for their employees, contractors, and other workers, further guidance on compelling tenants and others who are not federally regulated may be needed. Indeed, it is important to recall that the ministerial orders mandating the implementation of mandatory vaccination policies in federal transportation industries (save road in this instance) only extend to federal undertakings, and generally do not apply to entities subject to provincial authority. Employers can remain hopeful that further guidance on such issues may soon be provided, be it from regulators or, as litigation in this area progresses, other decision-makers.