COVID-19 Vaccines in the Workplace
As COVID-19 vaccinations become more readily available, employers have lots of questions about how vaccines will impact their workplace. This article addresses some of the important issues at play before providing answers to some frequently asked questions about vaccinations and the workplace. That said, the rules and regulations around COVID-19 are fluid and ever-changing. While jurisdictions across Canada have similar rules and regulations, every jurisdiction is different. Employers are encouraged to review the most up to date information from public health officers.
Issues at Play
Vaccinations in the workplace engage many different areas of law including privacy, human rights, and occupational health and safety. It is important to discuss legal principles because they provide the foundation for what employers can (and cannot) do in the workplace.
Human rights are protected by legislation in every jurisdiction in Canada. They are quasi-constitutional which means that they generally take precedent over other legislation. Human rights legislation prohibits discrimination based on protected grounds. Mandatory vaccination policies engage the following protected grounds: religion (e.g., certain religions oppose vaccinations), mental disability (e.g., some individuals have medically-recognized needle phobias) and physical disability (e.g., some individuals are prone to allergic reactions resulting from vaccination). Individuals with a protected ground must be accommodated to the point of undue hardship.
Employee privacy rights are similarly protected in every jurisdiction in Canada. The hallmarks of privacy legislation are consent, reasonableness and proportionality. In short, an organization must not collect, use or disclose personal information about an employee without the consent of the individual or unless permitted by statute. But, even with consent, there are limits on what can be collected. The information requested by an employer must be proportional to the necessity of the information. Information must be collected in the least intrusive way possible. We see this principle play out in accommodation cases where an employee takes time off for a medical leave. The employer is entitled to receive the employee’s prognosis (i.e., the timeline for getting better) but not the diagnosis (i.e., the actual illness causing the absence). We also see this principle in random drug testing cases where the Supreme Court of Canada has held that random drug testing is generally not permissible even in safety sensitive environments because it is an unreasonable intrusion into an employee’s privacy.
With respect to occupational health and safety, every jurisdiction in Canada has distinct rules pertaining to the steps employers must take to ensure the health and safety of workers.
The above are issues that largely protect the interest of employees. But employee rights are not absolute and need to be balanced against workplace safety (including the safety of patients, clients, students and customers) and the legitimate business interests of an organization.
Influenza Vaccination Decisions
Although COVID-19 is novel, the issues underlying mandatory vaccinations are not. Arbitrators in British Columbia and Ontario have dealt with mandatory “vaccination or mask” policies in the health care sector. The decisions pre-date COVID-19 but are useful tools to predict where courts and tribunals will land on the issue of compelling vaccination. However, each case and workplace is unique and caution must be exercised in applying the principles gleaned from these decisions. Policies in the health care sector are subject to the “precautionary principle”, the essence of which being that a policy that otherwise infringes on an individual’s rights may be more justifiable given the heightened risks in health care settings.
The British Columbia health authorities implemented an immunization or mask policy in 2013 for health care workers in situations where there is an influenza outbreak. The union grieved alleging that the policy was unreasonable, discriminatory and contrary to the Charter of Rights and Freedoms. Both parties submitted voluminous amounts of expert evidence on the efficacy of vaccines and masks to prevent the spread of influenza. The arbitrator reviewed the expert evidence and concluded that the policy was reasonable in health care settings as it represented the least intrusive way to ensure patient safety. Notably, the policy did not compel vaccinations. It offered employees a choice: vaccinate or wear a mask. In addition, the collective agreement between the parties expressly permitted the employer to require vaccinations in certain circumstances.
Interestingly, a very similar case was heard by an Ontario arbitrator in 2015. In that decision, a hospital implemented a vaccinate or mask policy similar to the one implemented in the British Columbia decision. The nurses’s union grieved the policy. Again, both parties led a significant amount of expert evidence on the efficacy of vaccines and masks to prevent the spread of influenza. However, the arbitrator came to a completely different decision based on his interpretation of the expert evidence related to the use of masks in reducing the transmission of influenza to patients, and the policy was deemed unreasonable.
There are important distinctions between the influenza policies cited above and COVID-19 policies. First, influenza does not pose the same public safety risks as COVID-19. Second, the influenza decisions dealt with “vaccinate or mask” policies. Employees were offered a choice. In this way, the policies were much less invasive than a COVID-19 policy compelling vaccination.
The two arbitration decisions above also reflect how we anticipate courts and tribunals will deal with the issue of mandatory vaccination policies: courts and tribunals will likely reach different conclusions depending on the circumstances until the appellate courts or Supreme Court of Canada rule on the matter.
Frequently Asked Questions about Vaccines in the Workplace
Q: Will the Federal or Provincial Governments mandate COVID-19 vaccinations?
A: No. The Government of Canada and provinces have confirmed that vaccination is not mandatory. While some provinces have legislation permitting mandatory vaccinations generally, no jurisdiction in Canada has confirmed that they intend to enforce such legislation.
Q: Can an employer compel its employees to get a vaccination?
A: It is unlikely that employers will be permitted to compel vaccinations in most workplaces: such policies will be deemed an unnecessary intrusion into an individual’s privacy. Courts and tribunals will balance employee rights with workplace safety. Employers who implement a mandatory vaccination policy must be able to explain why occupational health and safety rules (such as physical distancing, working from home, and mask wearing) are not sufficient to protect worker safety and the employer’s legitimate business interests. Employers will also need to accommodate individuals who are unable to receive the vaccination for reasons related to human rights protections. Employers who implement mandatory vaccination policies should exercise caution as they may be liable if an employee develops an adverse reaction upon receiving the vaccine.
Mandatory vaccination policies will likely be more acceptable in industries with increased health or transmission risks, such as long-term care homes, camps and health care settings.
Q: Will employees need to wear masks in the workplace after vaccination?
A: This depends on whether occupational health and safety rules and local authorities require masks in the workplace. While (depending on the jurisdiction) masks are not mandatory in all workplaces, they are mandatory in many workplaces, particularly where it is not possible to maintain appropriate social distancing. Occupational health and safety regulations do not currently state that masks will not be required upon vaccination. At some point this will likely change; however, we do not have insight into when. While the efficacy of vaccination appears extremely high, it is still unknown whether vaccinated individuals can act as carriers and transmit the illness to others.
Q: What can I do as an employer if an employee refuses to wear a mask post-vaccinations?
A: Employees must follow occupational health & safety guidelines or risk discipline. Employees who are unable to wear a mask due to a protected ground under human rights legislation may require accommodation to the point of undue hardship but accommodation does not necessarily include allowing them to not wear a mask where a mask is required by law.
Q: Can employees refuse to work with unvaccinated employees under occupational health & safety legislation?
A: Very unlikely. Employees have the right to refuse unsafe work. However, worker compensation boards require employees who refuse unsafe work to identify how the unsafe work is contrary to occupational health and safety guidelines. Assuming the workplace is following proper occupational health & safety protocols, the workplace is “not unsafe”. In other words, if the workplace was “safe” prior to an employee being able to receive a vaccine, it is still “safe” for occupational health and safety purposes after an employee becomes eligible to receive a vaccine.
Q: Are employees required to advise employers if they are vaccinated?
A: If there is a valid vaccinate policy in place (e.g., health care workers), then yes. However, employers will want to take great strides to ensure the information is kept confidential and not disclosed. However, in many workplaces, requiring employees to advise of vaccination will constitute an unreasonable intrusion into an individual’s privacy.
Given the ever-changing landscape and myriad legal issues at play, employers are strongly encouraged to seek legal advice before implementing any vaccination policies.
