As Ontario continues its roll out of COVID-19 vaccines, employers and their employees may be looking forward to a safe return to their workplace. As part of this return, employers may be considering the legal implications of the implementation of vaccination policies.
Recently, the province has mandated long-term care homes to put COVID-19 vaccination policies in place for staff by July 1, 2021. Under these policies, each staff member must do one of the following:
- Provide proof of vaccination of each dose;
- Provide a documented medical reason for not being vaccinated; or,
- Participate in an education program about the benefits of vaccination and the risks of not being vaccinated.
For other workplaces, however, provincial (and federal) authorities have yet to weigh in. So, for the time being, it is the responsibility of employers and their legal counsel to consider the circumstances of their particular workplace to assess the appropriateness of implementing vaccination policies. This means balancing the employers’ obligation to provide a safe workplace with the employees’ privacy rights and their rights under the Human Rights Code (the “Code”).
Precedential case law
In the unionized healthcare environment, some arbitrators have upheld influenza virus vaccination policies as reasonable because the employees had a choice to be vaccinated or held off work or, in some cases, take other personal protective equipment measures. However, in other cases, arbitrators have refused to uphold a “vaccination or mask” policy where there was limited evidence of the effectiveness of masking and the policy was contrary to the relevant collective agreement.
While we have yet to see any case law related to COVID-19 vaccination policies, in unionized or non-unionized settings alike, we have seen a case regarding mandatory COVID-19 testing which suggests arbitrators will consider the severity of the risks of COVID-19 as compared to the influenza virus. In that case, unionized employees in a retirement home grieved a policy that required mandatory COVID-19 testing every two weeks. Given the significant risks of the spread of COVID-19 to residents of the home and that COVID-19 can be transmitted by asymptomatic individuals, the arbitrator upheld the policy as reasonable.
Creating a COVID-19 vaccination policy
Taking into consideration the above, employers will likely be able to implement a COVID-19 vaccination policy, subject to certain limitations and Code-related entitlements.
At the outset, the policy should be reasonable and based on the nature of the workplace. It should keep in mind the employees’ privacy rights, the requirement of accommodations pursuant to the Code, and be consistent with the employment agreement, for non-unionized environments, or the collective agreement, for unionized environments.
A COVID-19 vaccination policy will likely require the disclosure of the employees’ vaccination status whether by self-disclosure or proof of vaccination. Employers should be cognizant of their employees’ privacy rights and ensure that their policy addresses how this information is securely stored and whether this information will be shared amongst management.
Employers should expect that some employees will refuse vaccinations based on bona fide medical or religious reasons, i.e., Code-protected grounds, and should be prepared to accommodate these employees to the point of undue hardship. The policy should therefore address possible forms of accommodation or, at minimum, the avenue by which employees can request accommodations.
Additionally, although the law is unclear, non-unionized environments may take further guidance from unionized environments. A vaccination policy would likely be acceptable if it is:
- Clear and unequivocal;
- Widely disseminated prior to its implementation; and,
- Consistently enforced.
Lastly, until there is case law or legislation on this subject, employers should take a non-adversarial approach in implementing their COVID-19 vaccination policy, especially regarding employees who are non-compliant for reasons not protected by the Code. Whether an employer will be justified in imposing disciplinary-measures or even dismissal for such non-compliance will depend entirely on the circumstances of their workplace. A starting point to avoid such instances may simply involve a discussion with the employee with the goal of educating and/or accommodating to find a suitable resolution.
Courtney March is an associate in the litigation department at Perley-Robertson, Hill & McDougall. March has a diverse range of litigation experience, particularly in the areas of employment and labour law, human rights, commercial and administrative law. If you are interested in implementing a COVID-19 vaccination policy at your workplace, please reach out to Courtney March at cmarch@perlaw.ca or speak to one of the employment lawyers at Perley-Robertson, Hill & McDougall LLP.
