• Insights

Jab or job: drafting vaccination policies in Canada

Written by
Mathews Dinsdale, Canada’s only national labour and employment law firm.
Authors
Tristan Hunter
Associate - Canada
Mathews Dinsdale
Canada
12.01.22
4
Increasing numbers of employers in Canada are introducing, or considering the introduction of mandatory vaccination policies for employees and some have already faced legal challenges.

As COVID-19 vaccines are now widely available, many businesses are in the process of implementing or updating COVID-19 mandatory vaccination policies aimed at keeping their employees and customers safe, while at the same time operating in as efficient a manner as possible.

Some employees and unions have sought to challenge mandatory vaccination policies (and even other, more flexible, vaccination policies) and thus far, there have been at least three arbitration decisions addressing the validity of such policies. These recent decisions provide further guidance as to the best practices and considerations employers should consider when reviewing or drafting a mandatory vaccination policy for their workplace.

Decisions addressing vaccination policies

The results of the jurisprudence issued to date confirm that there is no ‘one size fits all’ answer to whether or not a mandatory vaccination policy will be upheld by an adjudicator. The potential validity of a vaccination policy will depend upon the circumstances unique to each workplace, including, for example: the rate of voluntary vaccination amongst employees; the extent to which employees come into contact with members of the public or each other; the extent to which the employer has been able to control the spread of COVID-19 at work; the nature of the employer’s operations, etc.

In Paragon Protection Ltd. and UFCW, Local 333, the employer had implemented a mandatory vaccination policy which required all employees to be vaccinated by a certain date or face disciplinary action up to and including termination. The arbitrator found that the policy was reasonable.

In Electrical Safety Authority and PWU, the employer implemented a mandatory vaccination policy that required all employees to be vaccinated by a certain date, failing which they would be put on unpaid leave and eventually be terminated. Prior to the implementation of the policy, the employer had allowed unvaccinated employees to undergo rapid testing in lieu of vaccination. The arbitrator struck the policy down, finding it to be an unreasonable exercise of management rights. The arbitrator did, however, leave the door open for the employer to, in future, implement a mandatory vaccination policy that would place unvaccinated employees on unpaid leave, should ‘safety concerns become such that they cannot be adequately addressed by a combined vaccination and testing regime.’

In Ontario Power Generation and PWU, the employer implemented a ‘vaccinate or test’ policy which provided employees the option to undergo rapid antigen testing in the event that they did not want to be vaccinated. If they refused both options, they would be placed on an unpaid leave of absence and then eventually face termination if they continued to refuse to comply with the policy. The arbitrator upheld the policy.

Content of the policy

COVID-19 vaccination policies should, at minimum, include the following information:

  • the scope of the policy;
  • the purpose of the policy (i.e. controlling the spread of COVID-19);
  • timelines for compliance with the policy, with reasonable advance notice (i.e. when the policy’s vaccination requirements take effect);
  • the accepted exemptions to mandatory vaccination and confirmation of accommodation efforts to be undertaken by the employer where necessary;
  • consequences for non-compliance with the policy;
  • protocols in place to protect employee privacy;
  • educational resources and contact information if the employee has questions; and
  • any incentives implemented by the employer to encourage vaccination.
Potential risks

Potential risks for employers who implement mandatory vaccination policies include:

  • The implementation of such a policy may be found to amount to constructive dismissal in the non-union context or an unreasonable exercise of management rights in the union context.
  • Employers must accommodate employees who are subject to legitimate human rights exemptions (e.g. employees who are medically unable to be vaccinated).
  • Employers must have proper safeguards in place to protect sensitive information regarding employees’ vaccination status.
  • Potential public relations risk.
  • Impact on employee morale/retention.
  • An employee who suffers an adverse reaction to a work-mandated vaccine may be eligible to be compensated under workers’ compensation.

 

On the other hand, employers who do not undertake sufficient efforts to control the spread of COVID-19 may be found to be in violation of their duty to ensure the health, safety and welfare of their workers under occupational health and safety legislation.

Alternative options

For employers who do not wish to implement a mandatory vaccination policy in the workplace, less stringent alternatives include the following options:

  • Implementing a voluntary policy where the employer encourages staff to receives the vaccine and provides educational resources to overcome ‘vaccine hesitancy.’ This could also include certain incentives, such as paid time off or other monetary incentives, in order to receive the vaccine on the employees’ own time.
  • Implementing a policy where non-vaccinated employees are prevented from doing certain tasks, provided such restrictions are rationally connected to the risk of transmission.
  • Implementing a policy whereby non-vaccinated employees are subject to additional health and safety measures such as regular testing requirements and/or enhanced PPE requirements.

 

The state of COVID-19 in Canada (and associated government legislation) continues to evolve rapidly. Employers should continue to review their policies and practices, on an ongoing basis, to ensure they remain in compliance with the law and are consistent with the most up-to-date best practices.