Since the COVID-19 vaccine became widely available and employers and employees began contemplating returning to a semblance of normalcy (including returning to the physical workplace), the most common inquiries we received surrounded vaccination policies. Throughout the summer, we have fielded numerous questions about the requirement to have a vaccination policy, whether employers can make mandatory vaccination a pre-condition of continued employment, and other factors that should be addressed in a vaccination policy.
In this final article of our post-COVID-19 workplace blog series, we address all of these questions and aim to provide employers and employees with some clarity regarding the employment law implications of COVID-19 vaccination policies.
a. Are Employers Required to Have a COVID-19 Vaccination Policy
Yes. A regulation recently passed as part of the Reopening Ontario (A Flexible Response to COVID-19) Act requires all provincially-regulated Ontario-based employers to establish, implement, and ensure compliance with a voluntary or mandatory COVID-19 vaccination policy. As such, in addition to other required policies concerning accessibility and workplace violence, provincially-regulated Ontario-based employers must also ensure COVID-19 vaccination policies are prepared and kept up-to-date to reflect current laws and public health guidelines.
b. Can Employers Make Mandatory Vaccinations a Pre-Condition of Continued Employment
As a starting point, we have not yet seen any case law considering the enforceability of mandatory COVID-19 vaccination policies. Until we see some judicial or arbitral decisions on this matter, we are unable to comment on the legality of mandatory COVID-19 vaccination policies with certainty. However, prior decisions concerning flu vaccinations in certain workplace settings are illustrative.
Previously, the issue of whether a vaccination policy could be mandatory depended on the reasonableness of the policy based on the sector/type of work the employee does, the extent of the risk, and whether the employer could justify mandating vaccines. In these cases, adjudicators generally found an individual’s bodily integrity must be afforded the highest degree of privacy protection and indicated an employer cannot compel an employee to submit to vaccination. However, in certain industries where employees regularly dealt with elderly or immunocompromised individuals (such as healthcare and residential care settings) adjudicators recognized employers could compel employees to receive vaccines.
Due to the severe impact of COVID-19 on public health and the economy, we may see adjudicators prepared to uphold mandatory vaccinations in industries with less vulnerable populations. In particular, adjudicators may find a mandatory COVID-19 vaccination policy is a reasonable incursion on the privacy and human rights of employees where its overarching purpose is to protect the health and safety of employees and those who visit the workplace from the impacts of a devastating pandemic. The chances of enforceability will be greater if the policy is flexible enough to accommodate employees who are unable to be vaccinated for medical or religious reasons. It should also be brought to the attention of employees well in advance of attempts to implement or enforce the policy. Once in place, the policy would need to be consistently enforced to avoid complaints or allegations ranging from unfairness to discrimination. Finally, the policy should specify how personal health information regarding an employee’s vaccination status will be kept confidential and shared on a “need to know” basis.
We have already seen many employers in the government, transportation, education, banking, insurance and emergency response sectors implement mandatory COVID-19 vaccination policies, despite the lack of legal clarity on this issue. These large employers are likely relying on the scientific data which demonstrates how COVID-19 vaccines are overwhelmingly effective at limiting hospitalization, death and the severity of symptoms. The implementation of mandatory vaccine policies in certain high-risk settings (such as post-secondary institutions, hospitals, and schools) and a vaccine passport system (which notably excludes many workplace settings) is also providing some clarity and suggesting that organizations which implement mandatory vaccine measures could be afforded governmental protection. In this climate, many employers are prepared to take a calculated risk that the benefits of implementing a mandatory COVID-19 vaccine policy will outweigh an individual’s privacy interests and right to bodily autonomy (and believe most adjudicators will agree).
c. Best Practices for COVID-19 Vaccine Policies
Whether implementing a mandatory or voluntary COVID-19 vaccination policy, we recommend:
• Communicating to employees the purpose and authority for requesting information about an employee’s vaccination status.
• Considering whether employees will be required to provide proof of vaccination or whether verbal or written attestation will suffice.
• Indicating how information regarding employee vaccine status will be collected, used, disclosed and destroyed.
• Advising how individuals who cannot receive the vaccine due to a protected Human Rights Code ground will be accommodated. While the College of Physicians and Surgeons of Ontario has encouraged its members to be selective about issuing medical exemptions for the COVID-19 vaccine, in the limited circumstances where these exemptions exist, accommodation measures will need to be provided. Furthermore, individuals who provide evidence of sincerely held religious beliefs or creeds which preclude them from being vaccinated (from all vaccines, not just the COVID-19 vaccine) need to be provided with reasonable accommodation. However, the Ontario Human Rights Commission advises an employee’s personal preference against vaccinations does not appear to be protected on the ground of creed under the Human Rights Code and, as such, no reasonable accommodation is likely required for “anti-vaxxers”.
• Addressing how non-vaccinated individuals will be treated and what other public health measures will be implemented to ensure workplace safety (i.e. testing protocols, masking requirements, additional social/physical distancing measures).
• Addressing potential responses or consequences for employees who refuse to receive the COVID-19 vaccine. This could include requiring educational sessions on the efficacy of vaccines, limiting access to worksites, permitting remote work (if the employee’s position is conducive to a “work from home” arrangement), or disciplinary responses up to termination for cause or frustration of contract (in limited situations). If considering terminating an employee for refusing to comply with a COVID-19 vaccine policy, employers must exercise caution and we recommend legal counsel be sought to mitigate risk and exposure.
When we started this series just a few months ago, mandatory vaccination policies were seen as somewhat risky and most employment law practitioners were instead suggesting vaccines be strongly encouraged. However, governmental intervention and the recent actions of large private and public sector employers have provided reassurance to employers seeking to implement mandatory vaccine policies, even in an uncertain legal climate. Until tested in the courts or before labour arbitrators, it appears that the obligation to protect the health and safety of workers and the workplace from the severity of COVID-19 is prevailing over bodily autonomy considerations, provided legitimate human rights accommodations are contemplated in any policy. Given the evolving nature of the pandemic, flexibility and the ability to quickly adapt will remain a key factor in managing the COVID-19 workplace, maintaining employee morale, and mitigating legal risk and exposure.
Written by Jeff Rochwerg
If you are an employer or employee with questions about returning to the post-COVID workplace, including any questions about mandatory vaccinations or vaccine policies, please contact a Turnpenney Milne lawyer.