COVID-19 & Mandatory Vaccination Policies in the Workplace

Creating a Vaccination Policy

We know that COVID-19 is highly infectious and deadlier than influenza. There is also evidence that, unlike with influeza, asymptomatic transmission of COVID-19 does occur, and mask-wearing can reduce transmission where physical distancing of two metres is not possible. Additionally, most COVID-19 vaccines are approximately 95% effective, while the influenza vaccine varies in effectiveness every year.

In light of the above, can Ontario employers require employees to get the COVID-19 vaccine? Ontario employers are bound by section 25(2)(h) of the Occupational Health and Safety Act (the “OHSA”) and must take every precaution reasonable in the circumstances to protect the health and safety of workers. Based on the employer’s obligations under the OHSA, we assert that it is likely non-unionized employers will be permitted to require COVID-19 vaccinations in certain contexts. The reasonableness of the vaccination requirement will depend on the workplace. Employers wanting to require vaccinations should consider the following factors:

 

(a) the nature of the workplace

Employers should assess its specific workplace and decide whether all employees must receive the vaccine to make the workplace safer. Some workspaces may be large enough such that physical distancing, wearing masks, and frequent handwashing will provide sufficient protection from COVID-19 in all areas of the workplace. Further, a mandatory vaccination policy may not be justified where employees can effectively perform their work duties remotely.

However, mandatory vaccination may be justified for workplaces where physical distancing among employees is impossible (e.g. in construction or production lines), or workplaces frequented by vulnerable people (e.g. healthcare settings), or for employees whose job duties will require frequent travel after travel restrictions are lifted. A mandatory vaccination policy may also be reasonable in workplaces where employees interact directly with members of the public.

 

(b) the availability of the COVID-19 vaccine

If the vaccine is not yet made readily available to all Ontarians, then it will be unreasonable to make vaccination a requirement for continued employment. Employers should first determine if staff actually qualify to receive and have access to the COVID-19 vaccine before ordering them to return to work vaccinated.

 

(c) privacy considerations

Employers should recognize that asking an employee whether they have been vaccinated and requesting proof of same constitutes a collection of personal information and triggers privacy considerations. Employers should consider implementing a policy that:

1. grants the employer the authority to collect the information;
2. states the purpose of the information’s collection;
3. states whether a vaccination certificate will be required;
4. states what action(s) will be taken if the employee is not vaccinated; and
5. states how the information will be stored, shared, and destroyed.

 

(d) human rights accommodation

Some employees will refuse vaccination on grounds protected under the Human Rights Code (the “Code”), such as medical or religious grounds, and employers may be required to accommodate such employees to the point of undue hardship. For instance, an employee will likely be entitled to accommodation under the Code if he or she is at risk of a severe allergy to the COVID-19 vaccine, or has a medical condition or takes medication that will negatively react with the COVID-19 vaccine. Likewise, an employee who objects to vaccines for bona fide religious reasons will also likely be entitled to accommodation under the Code.

A vaccination policy should contain exceptions for such employees requiring accommodation, and employers should explore ways to accommodate them. Possible forms of accommodation may include allowing employees to continue working remotely from home. If working from home is not possible, accommodation may include requiring employees to complete daily COVID-19 assessments before entering the workplace, maintain appropriate physical distances, and wear a mask at all times.

 

(e) penalties for non-compliance

An effective vaccine policy should address how the employer will approach employees who refuse to comply with the vaccination policy for reasons not protected under the Code. Some employees may refuse to vaccinate out of personal preference. Employers may wonder if they can dismiss employees summarily (i.e. without notice or compensation in lieu thereof) if they refuse to comply with the policy.

There is one case that suggests employers can dismiss employees “for cause” if they refuse to comply with a mandatory vaccination policy. That case involved a non-unionized nurse who worked on a fixed-term contract at a federally regulated adult care facility with elderly patients. The employer created a policy through which influenza vaccination was a requirement for continued employment, and staff who refused to comply for non-medical reasons would be dismissed. The employee refused to get vaccinated because she asserted she never got the flu and had faith in her own immune system (reasons not protected under the Code) and so her employer dismissed her for cause. An arbitrator upheld the employer’s policy and the employee’s dismissal because there was sufficient evidence that the flu posed a serious risk to residents with whom the employee had frequent contact. While this case dealt with an unjust dismissal application under federal legislation not applicable to most workplaces, an Ontario judge or employment standards officer may find the decision persuasive in assessing whether an employee’s refusal to obey a mandatory COVID-19 vaccination policy provided grounds to dismiss the employee summarily.

Whether an employer can dismiss an employee summarily for refusing vaccination will depend on the unique circumstances of each case. Such a dismissal will likely be upheld in workplaces that provide direct care, especially to persons vulnerable to COVID-19. Less clear is whether a summary dismissal will be justified in work settings in which working remotely or physical distancing in the workplace is possible.

Given this uncertainty, employers should implement a vaccination policy that allows them to take a flexible approach to an employee’s non-compliance. For example, as an initial reaction, employers might place a non-compliant employee on an unpaid leave until they comply with the policy. Employers might also dismiss, with notice or compensation in lieu thereof, employees who refuse to comply with the policy and who do not have a human rights-related reason to do so.

Best Practices to Enforcing a Vaccination Policy

Until specific legislation requiring employee vaccination is passed or more guidance is released on this issue, employers should take a friendly approach to mandatory COVID-19 vaccination.

First, employers should consider implementing a vaccination policy that considers the factors explored above and that best meets the unique needs of its workplace. Employers must ensure all employees are notified of the policy and of the employer’s intention to return staff to the workplace. Employers should encourage staff to get the COVID-19 vaccine if they are able, and to let the employer know that they received it.

Then, employers should follow up with staff who have refused the COVID-19 vaccine. Given the novelty of mandatory vaccine policies outside of the healthcare sector, employers should take a non-confrontational approach to determine the reason for their refusal and consider whether their reasons form a protected ground under the Code. If employers think a Code-related ground may be engaged, employers should work with employees to determine how to best accommodate their needs.

If an employer believes an employee refused to get the COVID-19 vaccine for a reason not protected by the Code, the employer should refer to their vaccination policy for the next course of action. If the vaccination policy allows, the employer may choose to warn the employee that vaccination is required for continued employment, and continued refusal to get vaccinated may lead to an unpaid leave or even the termination of their employment.

COVID-19 has presented its own unique circumstances and issues that are developing every day. Employers should seek legal advice on whether mandatory vaccination is necessary for their workplace, how to best implement a vaccination policy, and how to best approach employees who refuse vaccination.