There is widespread hope that the rollout of COVID-19 vaccines will enable a full economic reopening and a return to some semblance of normalcy for businesses.
But it also raises new questions for employers: Can employees be forced to get vaccinated? How should organizations approach office reopenings? And what are the risks to employers of permanently shifting to remote work even once the threat of the pandemic subsides?
To help employers navigate these questions and more, OBJ and sponsor Emond Harnden – an Ottawa-based labour and employment law firm – teamed up to discuss vaccines in the workplace, the legal ramifications of organizations going fully remote as well as tips for managing a virtual workplace.
This is an edited transcript of a discussion between Emond Harnden partner Raquel Chisholm and OBJ publisher Michael Curran. To hear the full interview, please watch the video above. Prefer an audio version of this podcast? Listen to it on SoundCloud or Spotify.
CURRAN: Raquel, can employers force their employees to get vaccinated?
CHISHOLM: Because science doesn’t currently tell us whether taking a vaccine will protect others from the virus, we have to look at mandating vaccines through an occupational health and safety lens. Given the circumstances, employers wouldn’t be permitted to mandate vaccines for privacy and human rights reasons. It would also be difficult to make the argument that an employee couldn’t return to the office without being vaccinated, given that people have been working from the office safely with other health and safety precautions in place, such as distancing, screening and plexiglass dividers.
CURRAN: There’s a lot of discussions about what an eventual return to the office will look like, especially as some individuals become comfortable working from home. Can an employer direct where an employee is working?
CHISHOLM: The short answer is yes. Again, that would be subject to anything outlined in an employment contract or collective agreement. For them most part, remote work has been a temporary measure during the pandemic. There wouldn’t be a risk of constructive dismissal if an employer said the pandemic is over, it’s time for everyone to come back.
CURRAN: For employers thinking about exploring a fully remote workplace, what liability or risks are they taking?
CHISHOLM: You can certainly ask employees to permanently work from home, but unless there is something in their contract that gives you the authority to unilaterally decide for them, forcing someone to work from home brings a risk of a constructive dismissal claim or a grievance in a unionized environment. One thing to be careful about is if you permit someone to work remotely post-pandemic, and then change your mind and force them to come back, you’re also at risk of a constructive dismissal claim.
