Gowling WLG | August 31, 2021 | Link to Page
As the COVID-19 situation progresses in Canada, many employers across the country are assessing whether and how to implement vaccination policies.
Following are 10 key factors to consider in evaluating whether a vaccination policy can reasonably be implemented in your workplace:
- The duty to ensure health and safety of employees: Pursuant to occupational, health and safety requirements, employers have an obligation to take every reasonable step in the circumstances to protect the health and safety of their employees. Employers must conduct hazard assessments to address hazards in the workplace including those related to the COVID-19 virus. The occupational, health and safety concerns related to COVID-19 risk in the workplace are one of the most important considerations in determining whether a vaccination policy is required in your workplace.
- The rising trend of vaccination policies: Following the federal government and certain provinces’ announcements regarding mandatory vaccination for public service employees and employees in high-risk settings, workplace vaccination policies may increasingly be considered reasonable in certain contexts.
- Public health guidelines: Employers should take into account any federal and provincial orders of the Chief Medical Officer of Health that are applicable to the workplace.
- Regional rates of infection and workplace environment: Employers should consider the number of active cases in their applicable regions and the physical environment in which their employees work.
- Alternative measures to a vaccination policy: Employers should consider the specific workplace and whether engineering and/or administrative controls may be sufficient to protect employees from the risk of transmission of infection of COVID-19. Engineering controls may include physical barriers or ventilation systems. Examples of administrative controls include physical distancing, alternate work scheduling or cleaning/disinfecting policies. Regular rapid antigen screening may also provide an alternative or supplementary tool to manage the spread of COVID-19 in the workplace.
- Human rights grounds for refusing vaccination: Employers must be aware of potential human rights-based grounds for refusing COVID-19 vaccination such as medical conditions (disability) or religious beliefs. Where an employee has made a bona fide assertion of a human rights ground for being unable to vaccinate against COVID-19, employers must be aware and comply with the statutory duty to accommodate the employee to the point of undue hardship. As part of the duty to accommodate, employers may explore various forms of accommodation for employees who are unvaccinated such as requiring that masks or face coverings be worn, requiring regular rapid COVID-19 testing, and/or allowing employees to work from home.
- Personal beliefs against vaccination not a creed-based human rights ground: Recent human rights decisions suggest that a personally held belief against receiving a vaccine will be insufficient to establish a creed-based ground of discrimination. A 2020 Human Rights Tribunal of Ontario decision established that objecting to wearing a face mask was not based on creed (Sharma v Toronto (City), 2020 HRTO 949).
- A vaccination policy: A clear vaccination policy is key in minimizing legal risks associated with employment, privacy and human rights. The vaccination policy should be communicated to employees and externally (if applicable), clearly outlining the purpose of the policy and how it will be implemented and enforced.
- Privacy considerations: Employers must be conscious of their privacy obligations to protect the personal information of its employees. The collection, use and/or disclosure of personal information should be limited to what is reasonably required to fulfill the specific business purpose. A vaccination policy should clearly outline to employees what personal information will be collected, how such data will be used and to whom it will be disclosed. Safeguards need to be in place to protect the sensitive personal information relating to vaccination status.
- Frequent changes: This is a very dynamic area of the law. It is recommended that you reach out to your legal advisors regularly for updates and advice on best practices.
Once you have established that a mandatory vaccination policy can and should be implemented in your workplace, it is equally important to consider the scope of the policy (who it will apply to – e.g. employees, visitors, contractors), the effective date (it is important to provide a sufficient amount of time to allow unvaccinated employees an opportunity to get vaccinated in order to comply with the policy), and whether your organization will require proof of vaccination (if so, what will be considered sufficient proof) or simply accept an employee’s confirmation of vaccination status.
Should you have any specific questions about this article or would like to discuss it further, you can contact the authors or a member of our Gowling WLG Employment, Labour & Equalities Group.