Recent polls reveal that a majority of Canadians are more than willing to accept the COVID-19 vaccine, but not everyone. Whether related to personal, ethical, or medical arguments, vaccines are capable of generating highly-charged discussions, debate, and a vast range of responses and opinions.
So what then about the workplace and COVID-19 immunization? Is there a mandatory vaccination policy or can there be a mandatory vaccination policy? According to Ontario-based lawyer Stuart Ducoffe of e2r Solutions in a recent webinar hosted by Ceridian, the answer is NO, but, stay tuned.
“This is an extremely difficult area and we’re barely scratching the surface. There are rapid changes and developments so we need to stay current. Bottom line: We do not have mandatory vaccination but that is the short answer,” says Ducoffe.
The concept of mandatory vaccination gives rise to a plethora of legal issues, including human rights, privacy, occupational health & safety legislation in the workplace, and collective agreement compliance in unionized workplaces. Here is some background information, as well as previous challenges from the healthcare sector employers can examine:
- In four provinces – British Columbia, New Brunswick, Manitoba, Ontario – there is mandatory immunization reporting, which means that a child can be asked to leave in-class school by Public Health if refusing vaccines or refusing to report immunization status.
- In 2013, in BC, there was a legal challenge to a VOM policy with respect to the influenza vaccine. VOM is a “vaccinate or mask policy,” which provided a choice: employees either had to consent to the influenza vaccine or they would be required to wear a surgical mask for their entire shift (which staff said was uncomfortable, rendered patient care and connection difficult, etc). The arbitrator determined this policy was not coercive and upheld it.
- In 2018, in Ontario, a similar challenge occurred, but in this case, the arbitrator agreed that the VOM policy was unreasonable because of the volume of evidence presented regarding mask ineffectiveness against the influenza virus.
- In December 2020, in Ontario, a personal care home was challenged for requiring its unionized employees to submit to COVID-19 nasal swabbing every two weeks. Staff members who refused to take the swab would be required to wear full personal protective equipment (PPE) when working, or held out of service. The arbitrator determined this to be a reasonable and fair policy.
“Employers have an overarching obligation to comply with occupational health & safety policies, which means that you must take all reasonable precautions to ensure workplace safety. In the case of COVID-19 and vaccination, options in non-healthcare workplaces are going to be key.”
Ducoffe suggests non-unionized employers could consider the following options for employees:
- Take the vaccine or wear PPE – This is subject to human rights legislation, because for disability or religious issues, some employees may not be able to wear PPE.
- Leave of absence – If an employee says they will not take the vaccine, an employer could grant a leave of absence (but to what end?)
- COVID-19 testing on a regular basis – This was upheld in a previous arbitration as a fair and reasonable policy, so this may be a good option.
- Physical changes in the workplace to minimize risk – Employers can ensure physical distancing, erect barriers, or even change working conditions such as shift times/break times/hours of work. But an employee could argue this could be construed as a constructive dismissal because of the changing conditions of work.
- Working remotely – An employer could agree to allow those who do not want to be vaccinated to work remotely. However, if this option isn’t also available to vaccinated employees, it could give rise to calls of unfairness.
Employees are entitled to work in a safe environment. If an employee says it’s not safe, there needs to be investigation from the employer’s perspective. If the employee disagrees with the outcome of that assessment, that individual has the right to contact the Ministry of Labour for a subsequent investigation.
“If an employee doesn’t want to come to the workplace because they’re concerned about their safety, this can end up being a two-step dance with the Ministry of Labour. Even after mass COVID-19 immunization, there will still remain some level of risk because we know that the vaccines do not deliver 100% efficacy. An expectation of 100% safety would most likely be deemed over the top.”
Ducoffe says that in all likelihood, an employer could consider termination without cause if an employee refused to take the COVID-19 vaccine or refused to disclose their vaccination status. The employer would be required to fulfill their severance objectives, and ultimately, the optics of this situation aren’t very good.
“Bottom line: This is about mitigating measures – as an employer, have you done all you can? If you’ve enabled physical distancing, you’ve implemented mask wearing, most employees are vaccinated, and you’ve given the option to an employee to wear PPE or perform their work in different circumstances, you have provided options. I think that is going to be crucial as we move forward.”
Disclaimer: This information is intended to be educational in nature and was derived from a Ceridian webinar, COVID-19 Vaccines: Considerations for Canadian Employers. It is not to be construed as legal advice. If you require professional guidance related to this or any other workplace or workforce issue, please seek out legal counsel.