As vaccinations continue to roll out across the country and COVID-19 restrictions begin to ease in earnest from province to province, both employers and employees are beginning to look ahead to returning to workplaces they may not have attended regularly in over a year. As of July 16th, nearly 70% of the Canadian population had received at least one dose of the vaccine, and just under 45% were fully vaccinated. This may go a long way to making in-person work feel safer and more feasible, but what about those who, for one reason or another, are opting out of vaccination? With the idea of vaccine passports being discussed in relation to everything from travel, attending large social events, and returning to work, many are wondering if employers have the right to mandate vaccines for their staff in order to return to in-person work.
The answer is not a simple “yes” or “no”. Below, we’ll outline the balance employers must strike between providing the safest possible environment for employees and others, as well as protecting the rights of employees who cannot, or choose not to vaccinate against COVID-19.
Mandatory Vaccination Sparks Debate
The decision of whether to mandate vaccinations for those attending a business in person, including employees and customers or clients is controversial, with strong opinions on both sides of the issue. Recently, a national fitness chain created headlines after it publically stated it would not require staff or clients to disclose their vaccination status upon reopening. This prompted many members to threaten to cancel their memberships, while others applauded the decision. In a media release responding to the debate, the company’s president asked for more guidance from political leaders as the company looks to balance privacy and protection:
Especially for a national business like ours that spans all provinces, there are significant legal and privacy concerns. We call on Premier Ford, the provincial and federal governments to provide clear direction, leadership, and support for the businesses as we navigate through this challenging time.
Meanwhile, other smaller businesses that have implemented mandatory vaccination policies have angered many who are against the idea. Many of these businesses are local restaurants, bars, and other service-based industries that have created these requirements in order to protect staff and customers alike.
For many public-facing businesses, the decision of whether to put such a policy in place seems to be a lose/lose proposition.
Employers & the Obligation to Provide a Safe Workplace
In Ontario, employers have a duty to provide their employees with a safe working environment under the Occupational Health and Safety Act. As it applies to COVID, employers are obligated to follow all government-mandated policies including social distancing, mandatory face coverings, and allowing people to work from home whenever possible. As provincial restrictions begin to lift, workers who had previously been working remotely will be permitted to return to their offices, and employers will need to ensure that any ongoing mandates are still being observed. However, while requiring proof of vaccination for every employee may be viewed as the safest option, this also must be balanced with human rights considerations as they apply to employees.
Employee Privacy, Human Rights & The COVID Vaccine
Some employers may opt to create a policy mandating vaccinations for all staff, however, they should be prepared that the policy may be challenged. Many employers are choosing to encourage vaccination while stopping short of making them a requirement to attend at the workplace. The primary roadblocks to mandatory immunization are employee privacy considerations as well as human rights protections.
In May, privacy commissioners across the country issued a statement addressing the potential use of vaccine passports, acknowledging the potential public health benefit, while also warning that the idea may encroach on civil liberties. In order to withstand legal scrutiny if challenged, such a policy would need to meet a standard demonstrating that they are:
- Necessary, meaning there must be evidence to demonstrate passports are required to achieve the public health purpose for which they are created.
- Effective, meaning they will help to achieve their purpose, and remain effective as long as they are in use.
- Proportional, meaning the risks associated with implementing such a policy are proportional to the risks they are attemepting to address.
While this statement addressed the notion of vaccine passports, the same standards would likely apply to any privacy-based challenge to a workplace policy stating that vaccines are mandatory for employees.
Human Rights Considerations
Under the Ontario Human Rights Code, employees are protected from retaliatory or negative consequences in the workplace due to certain protected grounds. For example, if an employee has a medical or religious reason for opting out of the vaccine, this must be accommodated by the employer to the point of undue hardship, meaning the employer should find a way for the employee to continue working while also enhancing safety protections. This could mean allowing the employee to continue to work remotely if they are able to do so. For those who cannot work at home, accommodation might mean requiring an unvaccinated employee to wear additional personal protection equipment (PPE) in the workplace and perhaps undergo regular COVID testing.
The Decision to Mandate Vaccines Could be Dependant on Industry
The Ontario government is reportedly considering whether vaccinations should be mandated in certain high-risk employment sectors, such as healthcare and long-term care facilities. Given the vulnerable status of many healthcare patients and LTC residents, the intrusion on an employee’s privacy or other rights may be necessary to protect the safety of at-risk individuals. In a document obtained by CBC News, the province has acknowledged a potential legal impediment to such a policy, in that employers are not permitted to access an employee’s health records without their consent. While the document also states that this could be dealt with through the introduction of new legislation if necessary, there has been no indication that this will occur.
To date, the Ontario government has said it will not implement widespread vaccine passports in the province, and there has been no public declaration that employers will be required to mandate vaccines in any sector. It seems more likely at this point that those who opt-out of immunization, even those who work in high-risk industries, will be permitted to do so. However, those who have direct contact with vulnerable people may still be required to wear full PPE and undergo frequent screening.
Contact Ottawa Employment Lawyers Tierney Stauffer LLP
The experienced lawyers at Tierney Stauffer LLP can help minimize your exposure to employer liability, and provide legal advice for various employment concerns including workplace safety, policy creation and implementation, and terminations. To discuss your legal matter with a member of our employment team, contact Tierney Stauffer LLP in Ottawa, Eastern Ontario and North Bay at 1-888-799-8057 or contact us online to schedule a confidential consultation.