Avoiding foul play: Top 5 vaccination policy considerations for sports organizations

As of September 22, 2021, the province requires individuals age 12 or older to show proof of vaccination to access many non-essential businesses.^[1] According to Regulation 645/21 and its accompanying guidance document, a notable exception for showing a vaccine passport is for those under the age 18 who are entering the indoor premises of a facility used for sports and recreational fitness activities solely for actively participating in an organized sport. This exemption for youth applies to training, practices, games and competitions but not to those who are spectators at sporting events. Further, full vaccination is not required for workers or volunteers, including coaches and officials.

Nevertheless, many sports organizations such as Ontario University Athletics and U Sports have developed their own COVID-19 vaccination policies that go beyond the provincial requirements. For example, Alliance Hockey, an Ontario minor hockey association, announced that it will require proof of full vaccination for players age 12 and up.

As the regulations provide just a baseline of what is required, sports organizations are at liberty to implement their own vaccination policies that best fits their needs. Given that many sports organizations have opted to do so, we have summarized the top five considerations for organizations that are considering a COVID-19 vaccination policy.

1. Consider reasonability

As a sports organization with both members and staff, organizations will have certain obligations to their employees. Under Ontario's health and safety laws, employers are required to take every reasonable precaution to protect the health and safety of workers. This includes protecting workers from hazards posed by COVID-19 and other infectious diseases.

Whether a vaccination policy is a reasonable precaution depends on the nature of each workplace. Questions to consider include:

1. Can workers keep at least two metres apart?
2. Are there workers at heightened risk of severe illness from COVID-19?
3. Are there circumstances where masks can or must be removed to perform activities?

Where mandatory vaccinations may not be necessary, organizations should also consider whether proof of a negative COVID-19 test could be used as a valid alternative. The Ontario Human Rights Commission (OHRC) also recommends providing this alternative for individuals who are unable to receive a vaccine for medical reasons.

2. Consider the scope of the policy

A key component of any COVID-19 vaccination policy is to clearly identify to whom it applies. Each sports organization will need to decide if its policy will apply solely to employees or will extend to other workers, such as cleaning staff from third party agencies. What about volunteers and students under the age of 18?

Whatever approach an organization takes, it is vital to communicate the policies and procedures effectively to those to whom the policy applies. Communication methods include holding meetings, providing training and having individuals sign off on the policy. Effective communication of a COVID-19 policy is key as it confirms that the relevant individuals are informed and on board. Taking the time to communicate such policies can also be beneficial for an employer that is challenged by someone who refuses to comply with the policy in the future.

3. Consider provincial and regional recommendations in your sector

Businesses and organizations must stay apprised of recent announcements that apply to their sectors. In August 2021, the Ontario government issued Regulation 577/21 (Reg. 577/21) under the Reopening Ontario Act with wide-reaching impact. Under Reg. 577/21, businesses and organizations are required to operate in a manner that complies with "any advice, recommendations and instructions" issued by the Office of the Chief Medical Officer of Health (CMOH), or by a medical officer who has consulted with the CMOH, regarding a COVID-19 vaccination policy.

Put differently, as a result of this regulation, recommendations provided by provincial or regional medical officers are now binding on businesses and organizations.

4. Consider human rights obligations

While upholding human rights and protecting against COVID-19 has been a challenging balancing act, the OHRC has taken the position that mandating and requiring proof of vaccination is permissible under the Human Rights Code (the Code). Under the Code, organizations have a duty to accommodate individuals who cannot receive the COVID-19 vaccine a medical or disability-related reason. To satisfy this duty, organizations should provide an exemption for individuals who provide a written document signed by a medical professional.

The Code also has other protected grounds that may be cited to request an exemption from a vaccination policy. For example, the Code protects against discrimination based on creed. However, it is the OHRC's position that this does not extend to individuals who chose not be vaccinated due to personal preference or belief.^[2] Further, the duty to accommodate does not unequivocally require individuals with creed-based beliefs to be exempt from the vaccination requirements as there are limitations on the duty to accommodate. In light of the pandemic, the duty to accommodate can be limited if there is a serious health and safety concern.

5. Consider privacy obligations

As vaccination status and related medical information is considered sensitive personal information, organizations should be careful to enact policies that comply with relevant privacy law considerations. Further, in a joint statement issued by the Federal, Provincial and Territorial Privacy Commissioners, it was recommended that vaccination policies are implemented not only in accordance with privacy laws, but also in accordance with best privacy practices.^[3]

Organizations should ensure that they obtain meaningful consent to the collection of vaccine status information and should consult with relevant guidelines for how to ensure that consent has been properly obtained.

Conclusion

The science and the law surrounding COVID-19, transmission and vaccinations is still evolving, as is the advice from health professionals and the province. As most sports organizations seek to impose COVID-19 Vaccination policies, we urge you to keep these considerations in mind in setting your organization and teams up for success.

If you would like more information or assistance drafting your organization's COVID-19 vaccination policy, please contact the authors or your Gowling WLG lawyer.