Every day, Canadians are learning more about regulatory approval and distribution of new COVID-19 vaccines. For many employers, this raises new questions about changing their workplaces to “normal” including whether employers can ask employees to get vaccinated against COVID-19. To take some of the measurement work out of your decisions, we have clarified key conclusions, summarized your responsibilities as an employer, and outlined key issues moving forward. .
The law says …
While COVID-19 may be new, this is not the first time the question of mandatory vaccination in the workplace has arisen. In the integrated health care sector, negotiators were again asked to pressure hospitals from implementing vaccine and / or mask policies, with mixed results.
In 2013, a BC hospital implemented a policy requiring employees to get the annual flu vaccine or wear a mask to reduce the risk of flu. The Hospital Staff Union lamented the mandatory policy on the grounds that it violated both the general agreement and the BC Code of Human Rights. The arbitrator found that there was clear evidence that vaccination helped health care workers reduce the spread of flu to patients. The arbitrator also confirmed that the policy gave workers the choice of either getting the vaccine, or wearing a mask, and there was also special accommodation for individuals who were against the vaccine. It was accepted that while the policy significantly affected an employee’s right to privacy, it was not unreasonable to ask employees who refused a vaccine to take a mask with so little harassment. The arbitrator eventually dismissed the complaint and upheld the policy.
In contrast, in 2018 the Ontario arbitrator struck down a very similar policy, also designed to prevent the spread of flu, at a hospital in the Toronto area. The main obstacle in which the policy came to the arbitrator’s conclusion was that there was insufficient evidence that masks prevented the spread of flu. Without this direct link, the arbitrator decided that it was unreasonable to require employees who were free of tokens to wear a mask. Another feature that worked against the policy, both prior to its introduction, was that the hospital was still suffering from flu.
Recently, in November 2020, the union at the Ontario retirement home lamented a policy that required all employees to participate in continuous COVID-19 screening tests through a nasal swab per cola -deug. The policy included the provision of generous accommodation which stated that each employee’s challenges or concerns would be addressed by the policy on a case by case basis. The arbitrator reaffirmed the policy, concluding that while nasal swabs were a brutal measure, the goal of the policy was to reasonably prevent the spread of COVID-19 in the retirement home. This decision does not apply to vaccines, however, it does suggest that regulators value the risk posed by COVID-19 and may be willing to take a more critical approach. adoption that favors workplace safety over people’s privacy rights. How the courts view the case remains to be seen.
Duties of an employer
As the arbitrators pointed out in the above cases, the assessment and weighting of a set of competing obligations and the rationality of a mandatory workplace vaccination policy must be assessed.
All British Columbia employers are required under the Workers ’Compensation Act to maintain a safe workplace for their employees. This responsibility must be balanced against competing rights and protections enjoyed by employees under privacy legislation and the BC Code of Human Rights. In particular, section 13 of the Human Rights Code prohibits discrimination against an individual in the course of their work based on what are known as “prohibited grounds” of discrimination, which includes sex. , determination, faith and mental or physical disability.
Key Considerations
While understanding employer responsibilities and relevant case law provides some insight, the reality is that there is considerable uncertainty about who COVID-19 vaccination policies will be and will be mandatory in some areas. similar Canadian work. We can say that what is relevant will largely depend on factors such as the unity of your workplace, whether your employees interact directly with members of the public and whether your business is considered an essential service.
Based on the relevant case law, in order to be able to have a follow-up examination, a mandatory vaccination policy must establish a close link between the vaccine and the reduced risk of COVID-19 transmission. It is important to note that what is appropriate for one workplace may not work for another – a mandatory vaccination policy for a workplace where remote workers are not going to fly, but one could in essential service. To that extent, employers will have a harder time with employees who can work remotely justifying a mandatory vaccination policy. Policy needs to be clearly communicated to staff and implemented on a regular basis. Finally, as vaccines become more widespread and, hopefully, risks of transmission decline, what was currently the case may no longer be a mandatory policy. It will be critical for employers to ensure periodic reviews of the requirement and conditions of any vaccine policy during the pandemic.
Finally, any policy must recognize that all rules contain exceptions, and a special withdrawal should be made for anyone who cannot comply with the vaccination requirement for reasons related to the prohibited purposes of the Human Rights Code. . This can include people who cannot comply because of a physical or mental disability, or a religious requirement.
looking forward
Unprecedented situations like this lead to unforeseen issues and issues. Two of the questions employers usually ask us are:
- How can we get confirmation that an employee has been vaccinated; and
- Can we terminate an employee for refusing to adopt a mandatory vaccination policy?
If an employer requires employees to submit a vaccination declaration, any information received must be treated as confidential. Assuming the vaccination policy is protective, an employer will only be entitled to the minimum amount of medical information necessary to confirm that the employee has received the vaccine. Some Canadian provinces such as Ontario have announced that people with vaccines will be issued with a vaccine certification certificate – employers with protective vaccination policies are likely to be within their rights to request such documents, but should not request any information that is not reasonably necessary to ensure compliance with the policy, which could create privacy issues and raise human rights concerns.
Whether or not to comply with an enforceable immunization policy justifies disciplinary action up to the end of employment has yet to go before the courts. While we have seen examples from time to time of the courts holding up reasons for a serious breach of safety policy, it appears that regionally regulated employers in BC with compulsory vaccination policies to suspend employees who refuse to receive the vaccine or who comply with it mandatory. immunization policy and have no legitimate basis (eg protected human rights) for doing so, on an unreasonable basis. For federally regulated employers, additional consideration will be necessary before terminating non-regulated employees with at least twelve months service, as those employees cannot be suspended indefinitely. present “just cause” or dismiss their work.
The content of this article is intended to provide general guidance on the subject. Specialist advice should be sought about your particular circumstances.