More than 13 million people in Canada are now fully vaccinated against COVID-19, yet we’re finding employers are more and more worried about those who still aren’t and don’t plan to be.
Below, we answer some of the questions we are hearing from employers and set out what we think they should be considering.
1. Can I implement a mandatory vaccination policy in my workplace?
The question is really would it be reasonable to do so? This will depend on the context of the workplace and what other safety measures can be appropriately taken. If there isn’t a high risk of infection in the workplace, it won’t be reasonable. If the work is performed without exposure to risk, for instance by working remotely, then the answer is easier—it’s absolutely unreasonable.
Imposing such a policy with your existing workers is riskier than having one in place before hiring. Unless it is a real requirement of the job. For example, you need to hire someone who will have to travel internationally as part of their duties – —it may not be worth the legal risks.
Instead of imposing a vaccination requirement on workers, employers should consider how they can help facilitate employee immunization. Workers will need time off to get their shots and to deal with any side effects which can last hours or days.
2. Can I ask my employees if they’ve been vaccinated?
Your employees’ COVID-19 vaccination status is their personal health information. Requesting and having this information means taking on important legal obligations under privacy and human rights laws. Essentially, employers will want to ensure that collection and disclosure of immunization information is reasonably necessary, for a limited employment purpose and is not discriminatory.
Requesting proof of vaccination for the purpose of verifying eligibility to receive employer reimbursement through Ontario’s Worker Income Protection Benefit program is a good employment-related purpose for collection. Having only the person responsible for seeking the reimbursement receive the information is a good way to reduce the risk of it leading to any discriminatory treatment.
We expect that this issue may evolve as vaccine passports become commonplace.
3. Can I require proof of a human rights exemption from vaccination?
Generally, yes. If an employee raises a human rights reason for not being vaccinated, and the vaccination requirement is reasonable, an employer can require the employee to provide supporting information to verify their need for accommodation.
Even in a workplace where mandatory vaccination is necessary to satisfy health and safety obligations, it’s still possible that an employee may have a valid medical or religious reason for not getting the vaccine. This would mean that they would be entitled to accommodation up to the point of undue hardship. Typically an employer will not be able to terminate such an employee for not being vaccinated, where they have a valid human rights reason.
In many cases, a reasonable accommodation may be the implementation of a suitable alternative to vaccination for keeping your workforce safe. For example, maybe this employee can work from home or on a modified schedule when there are less co-workers in the workplace.
Employees are required to participate in the accommodation process if they are requesting an accommodation or an exemption from a health and safety standard. This may mean communicating with their medical advisor to understand the reason the accommodation is needed and for how long.
The suitability of any infection control policy will depend on the workplace, the industry and the individuals impacted. Get in touch with us if you need help figuring out what kind of policy would work best for your workplace or if you need guidance in dealing with an employee request for a human rights based exemption.
