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What to do about unvaccinated employees?

As employers institute vaccination policies for COVID-19, they face big questions about how to manage unvaccinated employees. OBJ publisher Michael Curran sat down with Porter Heffernan of Emond Harnden LLP to explore the employment law considerations of this issue.

MC: The foundational question here Porter is really this: Is it entirely reasonable and feasible for employers to insist employees who enter the workplace are fully vaccinated?

PH: That’s a very good question and it really captures 90 per cent of my practice for the last few months. The starting point for the answer has to be the unprecedented events of the last few years, and the toll this has taken on our society. There’s no question that the pandemic poses an enormous risk to public and individual health and safety. Employers both in Ontario and the federal sector have a statutory duty to take all reasonable action to protect the health and safety of their employees. It’s very clear that vaccines are a critical measure in protecting employees, so in my mind it is completely reasonable to impose a vaccine policy.

MC: Why is a vaccine policy a starting point for all of this?

PH: No matter what business you’re in, it’s important for staff to know the rules they have to follow. Those rules need to be clearly set out in a timely manner, giving staff time to comply with those rules. The policy needs to build a foundation for the approach you’re going to take. It should explain the rationale for its implementation (ex. Listing the COVID risks, government rules and employers commitment to the health and safety of staff.) It also needs to clearly set out what is required from employees and the deadline for that. The policy also needs to outline the privacy of vaccine status, and it’s important that the employers acknowledge the privacy declaration. It should also set out the consequences of not getting vaccinated. 

MC: We know there is a lot of complexity here, but what should an employer consider before taking any rash act9ion against employees who don’t get vaccinated?

PH: It’s important at the outset to remember that the goal here is compliance with the picy in order to protect employees so the first step I would suggest is to ask if there is anything they can do to help employees achieve compliance and meet the policy obligations. Having a discussion with employees who are non-compliant can help employers understand the nature of the objection and at times, education and support can help overcome that. If employees have brought forward a request for accommodation based on religious freedom, you have a duty to consider what accomodations can be considered. Employers also need to be understanding and not mechanistic in order to help employees be compliant.