Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On October 6, 2021, the Canadian federal government announced that federal public servants in the Core Public Administration (CPA)1 as well as employees in the federally regulated air, rail and marine transportation sectors will be required to be fully vaccinated against COVID-19. In addition, effective October 30, 2021, all travellers using these modes of transportation will be required to be fully vaccinated against COVID-19.
Travellers in Federally Regulated Transportation Sectors
As of October 30, 2021, travellers 12 years of age and older departing from Canadian airports on domestic, transborder or international flights, travelling on VIA Rail and Rocky Mountaineer trains, and travelling on non-essential passenger vessels on voyages of 24 hours or more, e.g., cruise ships, will be required to be fully vaccinated to travel, and provide proof of vaccination prior to boarding.
Transition Period for Travellers
Travellers in the process of being vaccinated will be entitled to a short transition period. Until November 30, 2021, they will be able to travel if they can show a valid COVID-19 molecular test within 72 hours of travel. Commencing November 30, all travellers must be fully vaccinated, with limited exceptions for emergency travel, and for those medically unable to be vaccinated.
Accommodation for Travellers from Small, Remote Communities
The vaccination mandate will include an accommodation that recognizes the unique needs of travellers from small, remote communities, some of which are inaccessible by road. The purpose of this accommodation will be to ensure the ability of such travellers to obtain essential services in support their medical, health, or social well-being. This accommodation will be informed by engagement with Indigenous organizations and provinces and territories.
Standardized Proof of Vaccination
The federal government, in partnership with the provinces and territories, is developing a secure, standardized proof of vaccination. This document will be available in a digital format and will enable Canadians to demonstrate their vaccination status both domestically and internationally. Until the federal proof of vaccination document has been implemented, which is anticipated to occur in the next two months, travellers will be required to show their provincial proof of vaccination record.
Employees in Federally Regulated Transportation Sectors
As of October 30, 2021, employers in the federally regulated air, rail, and marine transportation sectors will be required to establish vaccination policies for their employees. Such policies will apply to:
- Airlines and airports, and other organizations that have employees who enter restricted areas of airports, e.g., 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 members.
Each organization will be required to implement a rigorous policy, 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 federal government for the CPA (see below).
After a short phase-in period, each organization must guarantee its employees are fully vaccinated or they will be unable to work.
Regulation and Oversight
Transport Canada will use its regulatory and oversight authorities specifically related to the operation of federally regulated air, rail, and marine transportation service providers to ensure the transportation systems and their workplaces are safe through vaccination mandates.
Transport Canada will oversee compliance through inspections and enforcement tools, including Administrative Monetary Penalties, using oversight systems in place for each mode. Falsification of information or other compliance failures will result in serious consequences. Examples include:
- Railway companies could be subjected to compliance actions up to $250,000 per violation, per day, under the Railway Safety Act;
- Individual air travellers or employees could be fined up to $5,000 per violation under the Aeronautics Act, and operators could be fined up to $25,000 per violation;
- In the marine sector, employees and travellers could be fined for being non-compliant with the obligation to provide proof of vaccination up to $250,000 per violation, per day, and operators could be fined up to $250,000 per violation, per day, for non-compliance to the Interim Order made pursuant to the Canada Shipping Act, 2001.
Federal Public Servants
Federal public servants in the Core Public Administration, including reservists and members of the Royal Canadian Mounted Police, will be required to be fully vaccinated. This requirement applies whether they are teleworking/working remotely, or are working on-site. Contracted personnel who require access to federal government worksites must also be vaccinated.
Commencing October 6, 2021, employees will be onboarded in phases to provide their vaccine attestation through a secure online system, and they must do so by October 29, 2021. Employee attestations must be true. An employee’s false statement will constitute a breach of the Values and Ethics Code for the Public Sector and may result in disciplinary action up to and including termination. Attestations will be audited and managers may ask for proof of vaccination at any time.
As early as November 15, public servants who refuse to disclose their vaccination status or who are not fully vaccinated will be placed on administrative leave without pay.
Accommodation may be requested by employees who are unable to be vaccinated based on a prohibited ground as defined under the Canadian Human Rights Act, e.g., medical contraindication.
Crown corporations and federal agencies are being asked to implement vaccine policies similar to those announced on October 6, 2021, for the rest of the public service.
Bottom Line for Employers
Employers should be aware of the COVID-19 vaccination requirements that will apply to their employees who are required to undertake business travel. Furthermore, employers in the impacted federal sectors should become acquainted with the new COVID-19 standards affecting their ability to maintain as well as grow their workforce. Crown corporations and federal agencies are also encouraged to implement similar vaccine policies. The federal standards will also be instructive to provincially regulated employers in determining the standards they wish to apply in developing their particular COVID-19 vaccination policies. Experienced employment counsel can assist in developing policies tailored to the particular needs and circumstances of individual employers. Finally, all employers should establish the processes required to implement their respective COVID-19 vaccination policies and provide training to those who will be responsible for their implementation.
1 The CPA is made up of departments and organizations named in Schedules I and IV of the Financial Administration Act.