Employers may find themselves in complicated legal territory as they navigate back-to-office vaccination policies that balance workplace safety with worker rights, legal experts say.
Can employers require staff to get vaccinated before they return to the workplace? Employment lawyers warn that not all workplaces are on the same legal footing, and say most employers would be better off creating non-punitive alternatives to mandatory policies, or incentivizing employees to get their shots.
“I think there will be workplaces that will be able to justify [a mandatory vaccination policy] if it’s challenged, but for all employers to assume they can do it I think is a mistake,” said Dan Bokenfohr, a partner in the labour and employment practice group for McLennan Ross LLP. “Because it really is going to be industry-dependent, context-dependent, these assessments will be made on an employer-by-employer basis.”
If a workplace carries a high risk of transmission of COVID-19 or severe consequences from it, such as a long-term care facility, then an employer with a mandatory vaccination policy would likely be on firmer ground than those at workplaces where risks are lower or consequences less severe, Mr. Bokenfohr said.
For now, provinces aren’t requiring LTC workers to get vaccinated, although some are implementing policies to encourage them to do it. In Ontario, staff must provide proof they’ve been vaccinated or provide a documented medical reason for not being vaccinated. If they can’t do either, they must participate in an educational program on the benefits of getting vaccinated and the risks of not doing so.
“Even in the case of workers of long-term care homes who are dealing with very vulnerable people, the government is not requiring vaccination, but is requiring employers to develop policies around vaccination,” said Melanie McNaught, a partner at Filion Wakely Thorup Angeletti LLP, an Ontario firm that practices employment law. “The intent, of course, of the policy is to increase vaccination rates.”
Workplaces with a lower risk of transmission or serious consequences, though, may struggle to implement mandatory vaccination policies.
Employers have an obligation to maintain a safe work environment, including by reducing the risk of COVID-19 transmission in the workplace. But requiring vaccinations to do so could lead to discrimination suits if an employee is unable to get vaccinated for medical or religious reasons.
Chad Sullivan, a partner at the Atlantic Canada employment law firm Stewart McKelvey, said he’s advising his clients that if they mandate vaccinations, their policy should carve out alternative options for those who decline to get vaccinated for reasons protected by the Human Rights Act.
Employees could also refuse to disclose their vaccination status, because it’s considered to be personal health information.
“Employers will need to balance employee privacy rights with workplace safety. One doesn’t trump the other,” Filion Wakely’s Ms. McNaught said. “It’s a very complicated issue.”
On its website, her firm advises employers to assess several factors before making a decision on the issue, including whether a mandatory policy is “objectively necessary to ensure the health and safety of the workplace,” and no other “less intrusive” options are available.
Filion Wakely suggests employers try other methods to prevent the spread of COVID-19, such as incentivizing vaccination or implementing rapid antigen testing programs, before considering mandating vaccination.
The Royal Bank of Canada “is encouraging vaccinations wherever possible,” but is “not currently requiring” its employees to get vaccinated, said spokesman Rafael Ruffolo in an e-mail. The bank is providing employees with up to four hours of paid time off as needed for each vaccine appointment.
At Crowe Soberman LLP, a Toronto accounting firm that also offers human resources consulting, staff have been working remotely since the start of the pandemic. Chief operating officer Susan Hodkinson said management is planning to begin a hybrid of in-person and remote work in October, but if employees want to return to the office, they must be fully vaccinated.
If an employee doesn’t want to get vaccinated, or for whatever reason doesn’t want to return to the office, they can still continue working remotely, Ms. Hodkinson said.
“We’re not telling anybody that they don’t have a job any more if they don’t want to get vaccinated,” she said. “We just feel that our responsibility as an employer, both under [Ontario’s] Occupational Health and Safety Act, but also because we want our people to feel safe … is to require the full vaccination.”
Ms. McNaught said she wouldn’t feel confident advising her clients to terminate an employee who refused to get vaccinated. But in certain situations, depending on the policy and level of risk in the workplace, employers might be able to make termination a consequence.
“It’s going to always depend on the particular workplace,” she said of mandatory vaccination policies. “There’s not going to be any black-and-white answers, I don’t think, at least not for a while.”
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