By Krista Lahey
This question has become a very hot topic with the vaccine rollout picking up momentum across Canada.
In determining whether employers can require employees to get vaccinated against COVID-19, it is important to consider the following:
- The employer’s health and safety obligations
- Whether or not employee vaccinations are reasonably necessary
- The employees’ right to privacy
- Human rights considerations
Obligation to keep employees safe
Under the applicable occupational health and safety legislation, employers have an obligation to take all reasonable measures to ensure the health and safety of employees, and in the midst of a global pandemic, where vaccines become widely available, it may be reasonable to encourage employees to get the vaccine to help keep the workplace safe. A lot will depend on the workplace, the industry, and other contextual factors – employers must balance their health and safety obligations with employees’ privacy and human rights.
Reasonably necessary in a workplace?
It is crucial to remember that every workplace and industry is unique. Employers need to ask themselves, does the job and/or workplace require employees to work in proximity of others and put themselves or others at risk? If so, to what extent? In some workplaces, it is possible that sufficient protection may be achieved through existing public health measures including social distancing, use of masks, regular hand washing and other safety protocols. The more likely it is that non-vaccinated employees could put employees or customers at risk, the stronger the justification may be to mandate vaccinations. Mandatory vaccination policies may be considered reasonably necessary if employees are required to have frequent close contact with members of the public or work with vulnerable populations, however, may be harder to enforce in organizations where employees are primarily working from home. There are likely to be both legal and practical challenges in implementing a mandatory vaccination policy.
Under the applicable federal and provincial/territorial legislation, employees have a right to the confidentiality and privacy of their personal medical information. For this reason, it becomes challenging when looking to verify that the employee has indeed received their vaccination. While an employer may be within its rights to request employees to provide reasonable verification of vaccination, it is essential that the information is collected with meaningful employee consent, which includes the employer stating why it is collecting the information (i.e. for what reasonable purpose), what it does with it, who has access to it, and for how long the information will be retained. The least intrusive means of collecting information must be used and any data collected must be securely stored and used only for its intended purpose. Further, vaccination status information should only be disclosed on a need-to-know basis and the anonymity of employees who have not been vaccinated (or who have not disclosed their vaccination status) must be protected.
Under applicable human rights law across Canada, employers have an obligation to accommodate employees for protected grounds (such as, for example, creed or religion, disability, gender, sex – which may implicate pregnancy – and other protected characteristics) to the point of undue hardship, which is a high threshold. If an employee refuses to be vaccinated due to protected grounds, the employer may need to determine whether the employee can be accommodated without undue hardship. Examples of accommodations may include permitting the employee to work remotely, implementing additional health measures in the workplace, modifying work duties, or allowing the employee to take a leave of absence.
In unionized workplaces, additional challenges may emerge from collective agreements when considering implementing vaccination policies. Employers may consider instituting a voluntary policy presenting incentives for vaccination (such as paid time to be vaccinated) instead of a mandatory vaccination policy. Where a mandatory vaccination policy may be reasonable, employers may choose to provide a reasonable, non-disciplinary alternative to vaccination, such as remote work or allowing employees to go on an unpaid leave of absence. In addition to the legal and practical challenges, implementing mandatory vaccination policies may impact employee morale, company culture and employee engagement.
Before implementing vaccination policies, employers should be able to show that requiring their staff to be vaccinated against COVID-19 is reasonably necessary. Employers’ justifications for implementing mandatory vaccination policies are not one size fits all. Employers should evaluate the workplace and determine whether a vaccination policy, either mandatory or voluntary, is needed. Where vaccination policies are implemented, employers should take care when collecting and storing employee information. And where mandatory vaccination policies exist, employers will need to be very diligent when dealing with refusals based on protected human rights grounds. Employers should actively monitor developments in their jurisdictions and comply with the health and safety recommendations of their local governments.
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