With employees returning to the office, many Canadian employers are considering implementing mandatory vaccination policies in their workplaces. This is giving rise to many questions, including the legality of such policies as a condition of accessing the workplace.
Accordingly, we are discussing the implications of implementing a mandatory vaccination policy and best practices for doing so to avoid claims of wrongful dismissal, constructive dismissal, discrimination or otherwise.
Mandatory vaccination policies considerations
While the Government of Canada has announced mandatory COVID-19 vaccination policies for those employed in the federal public sector and in the federally-regulated air, rail and marine transportation industries, for many employers there is currently no federal or provincial legislation in Canada requiring mandatory COVID-19 vaccination for employees. This means that it is generally up to the discretion of the employer whether to implement such a policy in their workplace.
In Ontario, pursuant to occupational health and safety legislation, employers must protect their workers from health and safety risks in the workplace. If vaccination can be shown to effectively minimize the transmission of the COVID-19 virus, then it may be argued that mandatory vaccination policies are one way to satisfy this obligation.
It is not illegal for employers to introduce mandatory vaccination policies; however, an employer who chooses to implement such a policy should consider the following:
Human rights legislation across Canada prohibits discrimination in employment on certain protected grounds, including disability (which includes most medical “conditions)”, and religion/creed, each of which could potentially justify an employee’s refusal to vaccinate, contrary to the employer’s policy.
A policy that does not address and offer accommodation will violate human rights legislation, and may give rise to human rights claims, which could result in damages and costs against the employer.
Outside of the human rights context, employees may offer medical evidence (from a health professional) substantiating their refusal to vaccinate on the grounds that it would be harmful to their health due to a particular health circumstance (for example, allergies) or a medical condition.
Enforcement of a mandatory vaccination policy in these circumstances (in the form of discipline or termination of employment) could amount to a wrongful dismissal or human rights violation (or both), resulting in the potential for litigation and related damages and costs against the employer.
A “constructive dismissal” occurs when an employer unilaterally changes fundamental terms of an employee’s employment, and it gives the employee the right to leave their employment and to claim damages for wrongful dismissal.
Some employees may try to take the position that imposition of a mandatory vaccination policy amounts to a constructive dismissal. In other words, they could attempt to argue that implementing a mandatory vaccination policy represents a substantial change to the terms and conditions of the employee’s employment.
In collecting vaccination information, employers should be mindful of their privacy obligations to their employees.
Specifically, in collecting vaccination information, employers should:
- Limit the information recorded (or do not record the information at all);
- Securely store and retain collected information only as long as necessary; and
- Refrain from using the proof of vaccination information for anything not related to confirming an employee’s vaccination status.
Developing mandatory vaccination policies
In formulating mandatory vaccination policies, employers should consider including the following:
- Defining the scope of the policy (i.e., who does the policy apply to?);
- Outlining how screening will occur (i.e., how an employee’s vaccination status will be verified);
- Outlining how proof of vaccination information will be collected and stored;
- Outlining any exemptions to the mandatory vaccination policy (i.e., medical exemptions); and
- Outlining the accommodation process for those who cannot receive the vaccination (i.e., work-from-home arrangements, rapid testing, etc.).
Reasonable notice should be provided to employees prior to implementing any mandatory vaccination policies.
Employers are encouraged to contact experienced counsel for advice on creating and rolling out appropriate policies.
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