By Andrea Williams
Here are the answers to four employer questions about employee COVID-19 vaccination.
01 | Can the employer require an employee to be vaccinated as a condition for reporting to work?
Now that the vaccine is widely available, yes—but the employer must have a proper vaccination policy in place that contains a non-disciplinary and balanced response to and alternatives for employees who refuse. Employers don’t have a lot of guidance from courts or arbitrators yet. However, a few decisions about COVID testing and other contagious disease vaccination policies offer some insight as to how decision-makers will approach the assessment of the reasonableness of workplace COVID-19 vaccination policies.
Courts and arbitrators are united in a “balancing of interests” approach: weighing employees’ privacy rights against employers’ occupational health and safety obligations and the common good in slowing the spread of COVID-19. However, courts and arbitrators seem divided on where that balance is. The law isn’t settled yet, but courts and arbitrators are unlikely to uphold a workplace policy mandating employees obtain a vaccination as a condition for reporting to work if the outcome is disciplinary, including dismissal.
02 | What kind of circumstances are relevant to assessing whether a mandatory COVID-19 vaccination policy is reasonable?
Whether a court or arbitrator decides a COVID-19 vaccination policy is “reasonable” will be a highly fact-specific analysis. While they could consider many circumstances when determining reasonableness, five key factors are:
the specific language of the collective agreement in a unionized workplace
the nature of the workplace, such as a remote locale or the ability of employees to work from home
the degree of contact between employees and populations particularly vulnerable to COVID-19
whether the work environment requires employees to work closely with others
whether employees are providing a service a government has deemed “essential”
03 | Does the human rights law duty to accommodate apply to a COVID-19 vaccination policy?
Yes. Where a workplace COVID-19 testing or vaccination rule discriminates against an employee based on a characteristic protected by human rights law, the employer has a duty to accommodate that employee to the point of undue hardship. The protected characteristics that are most likely to be relevant are physical or mental disability, pregnancy (sex), family status, and religion. Employees requesting accommodation must demonstrate their membership in the protected group and cooperate in the accommodation process.
04 | Should I have a COVID-19 vaccination policy, and if so, what should I consider when putting one in place?
Yes. A COVID-19 testing and vaccination policy is a key tool to let your employees know your expectations of them and the consequences of their failure to meet those expectations. Follow these key dos and don’ts when developing your COVID-19 vaccination policy.
Do follow the steps to properly draft and implement your policy, including the collective agreement and consultation rules in a unionized workplace.
Don’t impose disciplinary consequences or dismissal on an employee who refuses to vaccinate.
Do provide options to employees who refuse COVID vaccination, such as wearing a mask, regular testing, using vacation time, or taking an unpaid leave of absence.
Do provide that you’ll impose discipline for non-compliance with the policy itself (as opposed to a refusal to vaccinate), and follow the appropriate discipline processes.
Don’t use a generic policy: there are some common elements to vaccination policies, but the assessment of each is fact-specific.
Do ensure the policy contemplates human rights obligations and your duty to accommodate.
Do consult with medical experts, if possible, so that you can present the medical evidence on which your policy is based if challenged.
Do address the protection of the privacy of employees’ personal health information.
Do review and revise the policy frequently to ensure it keeps pace with constantly evolving circumstances and science surrounding COVID-19.
Do address whether you’ll require employees to provide evidence they received a COVID-19 vaccination and if so, what you’ll require.
To discuss this or any other legal issue, contact any member of McInnes Cooper’s Labour & Employment Law Team. Read more McInnes Cooper Legal Publications and subscribe to receive those relevant to your business.
This article is information only; it is not legal advice. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2021. All rights reserved.
Andrea Williams is a labour and employment lawyer in McInnes Cooper’s St. John’s office. Andrea represents unionized and non-unionized employers on matters such as labour standards, human rights, wrongful dismissals, labour relations, workplace investigations and employee misconduct, and drafting employment agreements and workplace policies. Contact Andrea at firstname.lastname@example.org or 709.570.7316.