January 22, 2021

Workplace COVID-19 Vaccination Policies  

By Louis Sokolov  & Tassia Poynter

With COVID-19 vaccinations now available in Canada, many employers and employees are turning their minds to whether employers can require their employees to receive a COVID-19 vaccine as a condition of their employment.

While it may seem like a straightforward decision for all employers to adopt a COVID-19 vaccination policy, there is no one-size-fits-all approach and answers to questions surrounding whether vaccination can be made mandatory in workplaces fall squarely in a grey zone.

To help make sense of this tricky area, here are factors that employers who are considering adopting a COVID-19 vaccination policy should take into account:

Should Employers Have a Mandatory COVID-19 Vaccination Policy?

Employers across Canada have a legal obligation under occupational health and safety legislation to provide their employees with safe workplaces and to take all reasonable precautions to protect employees from getting a work-related illness.

For many employers, implementing a COVID-19 vaccination policy may be one effective way of meeting this legal obligation and providing a safe workplace for all staff in addition to clients and members of the public who may enter the workplace.

The vaccines available in Canada are currently thought to be between 80% and 95% effective in either preventing infection, or preventing symptoms of COVID-19 in the vaccinated person. More studies and time are needed to understand exactly why the vaccines are effective and whether vaccination also affects potential asymptomatic transmission of COVID-19 between a vaccinated person and a non-vaccinated person.

Although immunization is one of the best ways of preventing COVID-19 transmission and infection in workplaces, it does not mean that a vaccination policy will be necessary or justified for every workplace.

Is a Workplace COVID-19 Vaccination Policy Necessary or Justified?

It depends. Not all workplaces pose the same level of risk of infection and transmission either to employees or to others who enter the workplace.

Health care institutions, shelters, child care centres, educational institutions, industrial settings (including factories), retail establishments, hospitality sector settings (including restaurants), grocery stores, and office settings all have different risk factors to consider in determining what a reasonable policy might look like.

Employers should consider the following in determining whether a policy is necessary or justified:

  • Ability to work from home. Can employees perform their job by working remotely at home? If yes, is it necessary to require vaccinations and order employees to return to the physical workplace? Or is it possible to continue with a work from home arrangement while public health guidelines continue to recommend it? Are there issues concerning staff productivity that cannot be addressed other than by a return to the physical workplace?
  • Physical proximity. If employees cannot work remotely from home, can they safely practice physical distancing, masking, and good hand hygiene at work? Do the requirements for physical distancing, masking, and good hand hygiene pose a significant impediment or challenge to operating the employer’s business?
  • Vulnerability of clients or members of the public served. Does the workplace involve the provision of care or services to a vulnerable group? (e.g. healthcare employees in a long-term care setting)
  • History of workplace transmission. Have employees or anyone else entering the workplace become infected with COVID-19? Is immunization likely to significantly alter the current risk of infection in the employer’s particular workplace?
  • Timing of vaccination: What is the demographic of the workplace? Do all employees fit within one of the groups given priority status in receiving a vaccine in Canada? Or will certain employees become vaccinated sooner than other employees and receive preferential treatment because of their immunization status?
  • Available healthcare infrastructure. Is the workplace situated in an area with reduced access to healthcare infrastructure? Is the workplace situated in a COVID-19 “hotspot”?
  • Unionized setting. Is there a collective agreement and/or a joint health and safety committee that should be consulted and have input into the development of the policy?

Employers should avoid boilerplate policies that do not take into consideration the specific circumstances of their workplace. A policy for a healthcare or industrial setting in which employees cannot work remotely and have challenges practicing physical distancing and other preventative measures will necessarily look much different than a policy for an office setting in which employees can work remotely for the foreseeable future.

As employers consider drafting their policies, it should be kept in mind that it is unclear how courts or boards of arbitration may respond to any potential legal challenges to vaccination policies brought forward by unions on behalf of employees, or employees themselves in tribunals or courts.

In the past, some unionized employees have successfully challenged vaccination policies implemented by employers. For example, in the case of Sault Area Hospital and Ontario Nurses’ Association, 2015 CanLII 55643, the Ontario Nurses Association objected to the implementation of a “vaccinate or mask” policy that required healthcare workers in a hospital setting to wear surgical/procedure masks each year throughout the five to six month flu season if they had not received vaccination for influenza. The union’s position was that the policy was an unreasonable exercise of a management right. The arbitrator agreed with the union after hearing from several leading experts in epidemiology and the employer was not permitted to implement its policy.

However, COVID-19 is much more lethal than the flu and there are indications that arbitrators and courts may reach different conclusions about workplace policies relating to COVID-19. In Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada, 2020 CanLII 100531, the union challenged the employer’s policy requiring mandatory testing of all staff at a retirement home for COVID-19. The union argued that COVID-19 testing is painful and a serious invasion of an employee’s privacy. The arbitrator disagreed, holding that in weighing the intrusiveness of the COVID-19 test against preventing the spread of COVID in a retirement home, the employer’s policy was a reasonable one.

Can Employers Make Vaccination Mandatory For Every Worker?

The short answer is, no.

Employers can strive for 100% vaccination rates in their workplace, but there are limits to making a vaccination policy mandatory for every employee.

Employees may refuse to become vaccinated and must be accommodated by their employer to the point of undue hardship if the basis of their refusal is related to:

Medical reasons: Employees who cannot receive a vaccination because they may suffer an adverse reaction (e.g. employees with allergies at risk of anaphylaxis), employees who take medications that are contraindicated with the vaccine, or employees who are otherwise advised by medical practitioners to not take the vaccine, may refuse to become vaccinated.

Religious or moral reasons: Employees who object on the basis of religion or freedom of conscience may also refuse to become vaccinated.

Employees may be required to provide documentation to an appropriate person within the employer’s organization to substantiate their refusal to become vaccinated.

Employees’ Charter rights and human rights can engage complex considerations on the part of an employer. Employers should seek advice to understand how to meet their obligations to employees who cannot or will not become vaccinated on these grounds.

Employees who cannot become vaccinated or refuse to become vaccinated should be prepared to discuss what accommodation they are seeking from their employer and recognize that their requested accommodation may not be provided, but other reasonable alternatives may be provided instead.

Generally speaking, if an employee cannot be accommodated by being provided with modified work or an accommodation in the form of working from home, or working different hours, then an employee is entitled to take a job-protected unpaid infectious disease leave in connection with the COVID-19 pandemic. In Ontario, employees are entitled to remain on infectious disease leave until at least July 3, 2021, or potentially longer if they meet certain conditions.[1]

While valid exemptions from vaccination must be respected, vaccine hesitancy will also give rise to challenges in the workplace. Although these types of concerns will not trigger the same obligations in the form of accommodation, employers should seek to understand their employees’ concerns and determine if they will choose to hold townhalls or other information sessions to strongly encourage vaccination and provide credible information concerning its safety and efficacy.

Can Employers Require Proof of Vaccination?

Several sectors in Canada are contemplating “immunity passports”, or standardized documentation that proves a person has been vaccinated in order for that person to access services such as airline travel, or attending sporting or entertainment events with large groups in attendance.

While there is a precedent for requiring proof of immunization in certain contexts such as travel (e.g. yellow fever certificates for entry to countries with persistent transmission) and education (e.g. vaccination of school aged children against certain infectious diseases), the application of an immunity passport in a workplace setting is a new one that may present challenges.

Before employers invest in apps or other programs designed to verify employees’ vaccination status, they should consider the following:

Form of proof of immunization: Which documents will be considered valid in substantiating vaccination? Will employees be required to undergo anti-body testing? Will medical certificates from healthcare providers be required? What information must be included in a medical certificate? Who will pay for anti-body testing and/or medical certificates?

Privacy of personal health information: Who is gathering employees’ personal health information regarding their immunization status and what protections are in place to safeguard the privacy of the information? Who within the employer’s organization will have access to the personal health information?

How proof of immunization will be used: What privileges or responsibilities will employees who provide proof of vaccination receive? What privileges or responsibilities will be withheld from employees who have not been vaccinated or who do not provide proof of vaccination? Will this cause morale issues?

If employers choose to implement a workplace COVID-19 vaccination policy and collect proof of immunization and other personal health information belonging to their employees, they must ensure that strict privacy controls over the information is maintained and that the information is shared with as few people as possible and only for the purpose of managing attendance at the employer’s premises.

Can Non-Vaccinated Employees Have Their Employment Terminated?

Whether employers can make vaccination a condition of ongoing or new employment is a question that can only be answered by looking at the full context of the workplace.

Requiring vaccination as a condition of employment may be a justifiable or reasonable requirement if the circumstances of the workplace make it impossible for employees to perform their jobs remotely and other factors make the workplace one that is at high risk of transmitting COVID-19 in the workplace.

Some employers may consider revising employment contracts to make vaccination mandatory, except in the case of the valid exemptions described above. If employers choose this approach, they should consult with legal counsel to ensure the new contracts will be enforceable.

Bottom Line Practical Advice for Employers

Implementing a workplace COVID-19 policy requires careful consideration. Employers should assess the particular circumstances of their workplace and consult their employees to determine their present intentions on receiving, or not receiving, the COVID-19 vaccine once it becomes available to them. Surveys determining employees’ vaccination willingness should be anonymous.

If employers determine that a vaccination policy is necessary, the logistics of how information and expectations concerning vaccination will be communicated to employees and how proof of immunization will be collected should be determined well in advance. Internal processes for employees requesting workplace accommodations for valid exemptions, and the drafting of any new or revised employment contracts should also take place early in the process.

Finally, employers should keep in mind that even if they are successful in achieving high rates of vaccination within the workplace, because the available COVID-19 vaccines are not 100% effective and their effect on asymptomatic transmission is unclear, other prevention measures including physical distancing, masking, and good hand hygiene should remain in place in workplaces until public health guidelines change.

For assistance with COVID-19 employment related questions, please contact Louis Sokolov or Tassia Poynter. Louis and Tassia regularly provide employment law advice to our clients. Louis can be reached directly at 416.572.7316 or lsokolov@sotosllp.com. Tassia can be reached directly at 416.572.7314 or tpoynter@sotosllp.com.

 


[1] Infectious Disease Emergency Leave, O. Reg. 228/20.