TORONTO — Working from home has gone from novelty to reality for much of Canada’s workforce over the past 12 months.
And now that Canada’s vaccination rollout is gaining momentum, more than a few employees (and employers) are wondering about the eventual return to a traditional office environment.
These are early days, and like everything else with the pandemic, the return to offices won’t happen overnight. And no doubt some employees may prefer to make working-from-home a permanent switch. But there will come a day when work life starts to look a bit more typical.
Which got us wondering: post-pandemic, can employers ask employees to get vaccinated for COVID-19 before they return to the office – or a travel agency, in the case of travel retailers? And can an employee refuse? And are there resources for employers and employees who need advice on how to handle these situations?
We sent several questions to Goulart Workplace Lawyers after a referral from HR à la carte, which has partnered with ACTA on several of its webinars during the pandemic.
Jennifer Philpott, an Associate with Goulart Workplace Lawyers, answered our questions for this Q&A.
Q. Why are questions around mandating the COVID-19 vaccine in the workplace an issue?
Philpott: “One year into the COVID-19 pandemic, Canada is in the early stages of its vaccine rollout. With the lingering economic downturn caused by the pandemic, it is no surprise that employers have started to consider the possibility of implementing a vaccination policy in the workplace.
Jennifer Philpott, Associate, Goulart Workplace Lawyers
“Mandating that workers receive a COVID-19 vaccine has been a polarizing issue for several reasons. First and foremost, vaccinations require a delicate balancing of employer health and safety obligations and workers’ rights under contract, privacy, and human rights legislation. While many individuals are eager to receive their vaccine and to return to pre-March 2020 ‘normal’, others are skeptical of the efficacy of COVID-19 vaccinations.
“While legal precedent exists for mandating the influenza vaccine in certain unionized sectors such as healthcare and long-term care, the issue of mandatory COVID-19 vaccination policies has not been the subject of a legal challenge. As a result, there remains great uncertainty as to what a mandatory COVID-19 vaccination policy could entail.”
Q. Can employers compel their workforce to receive a COVID-19 vaccine?
Philpott: “As things stand, the answer is generally no. As a result, employers must allow workers who refuse to receive the COVID-19 vaccine to continue working.
“There may be an argument for mandatory vaccination in sectors or industries where an employer’s workforce comes in close contact with vulnerable populations. If an employer’s health and safety considerations justify mandating vaccination, such a policy would be subject to limits and must be tailored to risks associated with the specific workplace environment.
“As mentioned above, mandatory influenza vaccination policies have been approved in unionized workplaces, such as hospitals. Historically, arbitrators have allowed these policies where the policy is:
Consistent with the exiting collective agreement;
Reasonable in the circumstances;
Clear and unequivocal;
Brought to the attention of affected workers, including specifically as it relates to the potential for disciplinary measures in the event of non-compliance; and
Consistently enforced from implementation onwards.
“These factors are a useful guide for non-unionized employers to consider when deciding whether to implement a vaccination policy in the workplace.
“Concerning the travel industry, an argument could be made that employees regularly come into contact with vulnerable populations, notably older individuals who seek out in-person assistance with travel arrangements.
“Ultimately, implementing a mandatory vaccination policy in the workplace poses a risk to employers, as it remains to be seen whether they will be upheld as reasonable by courts. Employers are within their rights to encourage members of their workforce to receive the vaccine as an effective measure to prevent the spread of COVID-19.
Q. What can employers do if workers refuse to receive a COVID-19 vaccine?
Philpott: “If an employee refuses to take the vaccine and is subsequently terminated for cause, they may bring a claim for damages arising from wrongful dismissal. A worker (including employees, independent contractors, and dependent contractors) may refuse to receive the vaccine on the basis of a protected ground of discrimination under the such as disability or religion/creed under the Code.
“Employers are entitled to ask reasonable questions to the extent necessary to verify a worker’s claim. Once the worker’s claim is verified, the employer must accommodate the worker to the point of undue hardship based on cost or health and safety. A worker who faces discipline, reprisal, or adverse treatment for refusing the vaccine on the basis of a protected grounds under the Code may bring an application to the Ontario Human Rights Tribunal. Workers who refuse the vaccine must continue to comply with social distancing/masking policies and masking by-laws.”
Q. Can employers request proof of vaccination from workers who receive a COVID-19 vaccine?
Philpott: “Yes, an employer may request proof of vaccination from workers who receive the vaccine if the request is made in good faith and is reasonably necessary for reasons related to safety.
“Any medical or personal information obtained in order to verify a claim should be held by the employer’s human resources team for safe keeping. Requests for medical information should intrude as little as possible on a worker’s privacy.”
Q. Who should employers turn to for guidance?
Philpott: “Employers who are considering implementing a mandatory vaccination policy for COVID-19 should contact an employment lawyer to ensure that the policy is appropriate, reasonable, and does not infringe on the rights of workers.”
Philpott can be reached at jphilpott@goulartlawyers.ca. Goulart Workplace Lawyers can be reached at (289) 856-1108.
