Over the past two months, governments across the country have begun implementing various vaccination measures in an effort to curb rising COVID-19 case numbers.
All provincial governments have announced or have begun implementing some form of vaccine passport system to restrict access to certain non-essential businesses to only fully vaccinated individuals or, in some instances, individuals who provide a recent negative COVID-19 test result.
The federal government, along with several provincial governments, have also announced plans to implement mandatory vaccination policies for government employees and employees in certain industries. In British Columbia, for instance, the provincial government announced in August that vaccinations would be mandatory for all healthcare workers, volunteers and personal service providers entering long-term care settings by mid-October.
With the media reporting a growing number of private sector employers also formulating their own mandatory vaccination policies, many employers may be left asking themselves whether they should consider doing the same. While there are privacy, human rights and common law issues that employers will want to consider, employers do enjoy some flexibility in crafting such a policy. We unpack some of these issues below.
What is a mandatory vaccination policy?
It is worth noting at the outset that "mandatory" vaccination policies-at least as they have been portrayed in the media-are often not actually mandatory. While some employers may have a strict policy requiring full vaccination as a condition of remaining employed, other employers have policies providing employees with alternatives, such as undergoing regular COVID-19 testing and providing proof of a recent negative COVID-19 test result. Employers who are able to operate remotely may instead have a "mandatory" vaccination policy, but the policy may only apply if employees voluntarily choose to attend the office. There is no one-size-fits-all approach, and while it may seem like many employers are implementing a strict requirement for employees to be vaccinated, that is not necessarily the case.
Do employers need a vaccination policy?
Employers may need some sort of vaccination policy depending on the industry in which they operate and/or where they are located.
In Ontario, for instance, the provincial government requires that a number of organizations in high-risk settings (e.g., hospitals) establish, implement and ensure compliance with a COVID-19 vaccination policy that requires its employees, staff, contractors, volunteers and students to provide proof of full vaccination against COVID-19, a valid medical reason why they cannot receive a vaccine, or proof that they have completed a COVID-19 vaccination educational session. Note that these employers are not required to have a policy that mandates vaccination for their employees, as employees who do not provide proof of vaccination are permitted to undergo regular COVID-19 testing as an alternative. More information on this specific mandate can be found in our earlier communiqué.
Employers may also be required to implement a vaccination policy based on the public health unit in which they operate. On August 24, 2021, the Ontario provincial government amended O. Reg. 364/20 to require that businesses must operate in compliance with any "advice, recommendations and instructions" issued by medical officers of health regarding COVID-19 vaccination policies. A number of public health units across the province have issued strong recommendations for employers to adopt some sort of vaccination policy in their workplace which, when considered in light of O. Reg. 364/20, effectively requires employers in those areas to follow those recommendations.
Outside of direct government mandates, employers may also have an obligation to implement a vaccination policy based on their general duty under health and safety legislation to take every precaution reasonable in the circumstances to protect the health and safety of its employees. We caution, however, that the extent of this duty-and the appropriate policy in the circumstances-may vary from workplace to workplace; an office building where employees can work apart from one other (or even remotely) is not always the same as a manufacturing facility where employees may need to work side by side.
It is important to reiterate that a requirement to have a COVID-19 vaccination policy, whether directly or indirectly, does not necessarily mean that the employer must require employees to be fully vaccinated.
What should employers consider when developing a vaccination policy?
If an employer is required or chooses to develop a vaccination policy, they should consider some of the following issues:
- Type of Policy. Government legislation may dictate the type of vaccination policy that employers will need to develop (e.g., whether a strict requirement must be in place or whether employees will have alternative options). Employers who are not subject to government mandates or who wish to go above and beyond minimum legislative requirements should structure their policy in a way that makes sense for their workplace. If all employees are required to work from home, it may not make sense from an employment perspective to require that all employees get vaccinated. If the nature of the workplace instead requires in-person attendance, it may make more sense to have some sort of policy in place to help protect the health and safety of people in the workplace. In all circumstances, employers should consider whether full vaccination is required or if other less intrusive alternatives, such as regular COVID-19 testing or enhanced use of PPE, should be offered to employees.
- Human Rights. Some employees may not be able to receive a COVID-19 vaccine for medical or religious reasons. Any policy put in place by an employer should provide that the employer will accommodate employees who cannot comply with the policy on the basis of a ground protected by applicable human rights legislation. For example, if the policy mandates vaccination for employees, but the employee has a valid medical reason why they cannot receive a vaccine, the employer can consider offering the option of regular COVID-19 testing, modified work duties, or having the employee work from home for the time being. The Ontario Human Rights Commission recently released a policy statement stating that proof of vaccination requirements are "generally permissible" under the Ontario Human Rights Code in order to protect people in the workplace, as long as individuals who cannot receive a vaccine are reasonably accommodated. The Commission also clarified that individuals who choose not to get vaccinated on the basis of a personal preference do not have a right to accommodation, as personal preferences do not amount to a creed for the purposes of the Code. More information on the Commission's policy statement can be found in our earlier communiqué.
- Privacy. Any collection of an employee's medical information (including vaccination status) brings privacy considerations into play. An employer's vaccination policy should ensure that it addresses how the employer will collect, use and disclose any information collected, while also ensuring that only the minimum amount of information necessary for implementing the policy and ensuring the health and safety of individuals in the workplace is collected. Employers in federally regulated industries or in provincially regulated industries in British Columbia, Alberta and Québec will want to ensure that their policies are in compliance with privacy legislation applicable in those jurisdictions.
- Consequences of Non-Compliance. Employers should turn their minds to how they will deal with employees who refuse to comply with their policy. Employers can consider disciplining employees, placing employees on unpaid leave, or terminating their employment (with or without cause). Any disciplinary action should be approached with caution, as employers generally need to demonstrate that the requirements of a policy were reasonable in order to justify disciplinary action. Whether or not a policy is reasonable will largely depend on the nature of the workplace and how onerous the policy is on employees. Stay tuned for our upcoming communiqué that will address some of the issues around non-compliance in more detail.
What are some of the risks of implementing a vaccination policy?
As a practical matter, non-unionized employees generally have few legal avenues available to them to challenge an employer's vaccination policy. Nonetheless, there are several potential risks of which employers should be aware:
- Constructive Dismissal Claims. An employee could conceivably take the position that a vaccination policy unilaterally implemented by their employer constituted a fundamental change to their employment contract, amounting to constructive dismissal. The merits of such a claim would largely depend on the requirements of the policy and the employee's specific workplace. Practically speaking, resigning and attempting to make out a claim for constructive dismissal on this basis may not be an attractive option for many employees, but it remains a risk that employers should weigh when developing their policy.
- Wrongful Dismissal Claims. If an employer terminates an employee for just cause for failing to comply with a vaccination policy, the employee may allege that the policy was unreasonable and that they were wrongfully dismissed. While terminations for cause may be upheld in certain limited circumstances, employers can mitigate this risk by considering other options short of termination, such as placing employees on unpaid leave.
- Human Rights Claims. If an employer refuses to accommodate employees who cannot comply with a vaccination policy on the basis of a protected ground under human rights legislation, they may face credible claims for discrimination unless the employer can demonstrate that the requirement to be vaccinated was a bona fide occupational requirement. Employers can mitigate this risk by ensuring they offer reasonable accommodations to employees in these circumstances.
- Privacy Complaints. An employee in a jurisdiction governed by privacy legislation may file a complaint with their privacy commissioner if they feel that their employer has violated applicable privacy laws. Employers can mitigate this risk by following best practices and collecting, using and disclosing only the minimum amount of employee personal information necessary in the particular circumstances.
In the unionized context, employers will want to ensure that any vaccination policy they develop is reasonable, intrudes on employees' privacy rights only to the extent necessary in the circumstances, and does not conflict with the collective agreement. While employers generally retain the ability to implement such policies without the union's consent, employers may want to consider consulting with the union while developing the policy to get their input and to help minimize the likelihood of a grievance down the road.
We encourage employers to reach out to a member of our Labour and Employment Group to discuss any of the issues above or to help develop a vaccination policy that makes sense for their business.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.