In Ontario, certain organizations are under a provincial government mandate to adopt COVID-19 vaccinations, and others have chosen to do so voluntarily. But, many still are left wondering if they should. Before deciding, answer this question: Is it a reasonable policy?
Vaccination policies as a concept are not new. They have been implemented in various workplaces in the past, including healthcare settings. But mandated COVID-19 vaccinations for employees has received a lot of mixed feelings.
The main driver of workplace contention over COVID-19 vaccination appears to be the unprecedented level of politicization of vaccines and other COVID-19-related measures, including masks and lockdowns.
With that said, there is currently no indication that a properly limited COVID-19 vaccination policy is inappropriate and, indeed, it may be necessary to help organizations comply with their obligations under health and safety legislation – as long as it can be seen as a ‘reasonable policy’.
What is a ‘Reasonable Policy’?
A policy introduced by an employer often infringes on an employee’s rights in some way. To be justified, it must be a reasonable exercise of the employer’s control over the workplace or the working conditions in the workplace. Therefore, the employer is bound to balance employee rights such as privacy, human rights, and workplace safety.
1. Workplace Safety
Employers are required by legislation throughout Canada to maintain workplace health and safety. Employees are entitled to work in a workplace where hazards are minimized.
COVID-19 vaccines are freely and widely available in Canada. Evidence has shown that COVID-19 vaccines reduce spread and significantly reduce the risk of hospitalization associated with COVID-19. Therefore, they are an invaluable tool, along with masks and other measures, in an organizations’ toolbox to ensure COVID-19 impacts are mitigated and the workplace is as safe as possible for as many individuals as possible.
Action item: Any vaccination policy should specifically discuss the employer’s commitment to workplace health and safety and the rationale behind the policy with regards to health and safety.
2. Human Rights
Employees have a right to a workplace free of discrimination. Employers have an obligation to ensure that any employee facing discrimination by a rule adopted by the employer can be accommodated to the point of undue hardship.
Employees are required to work with the employer to ensure they provide adequate evidence of the accommodation needed.
Grounds of discrimination vary by province, but the main objections to a COVID-19 policy will likely come from medical exemptions or, perhaps, religious exemptions. Where a medical exemption applies, the employer will need to carefully consider the evidence and how to accommodate the employee if the evidence is in favour of a valid exemption.
Accommodation may include:
- Allowing the employee to work from home until the danger associated with COVID-19 passes;
- Requiring the employee to wear a mask or other PPE;
- Allowing the employee to take a leave of absence or vacation time as may be appropriate;
- Other measures.
While health exemptions are more likely to be valid, religious exemptions may still be brought up.
Employees will likely have a more challenging time proving a religious exemption. The employee would need to prove that they hold a “sincerely held religious belief” that prevents them from obtaining the vaccine. If the employee can do so, then it will activate the accommodation requirements.
**Note** Concerns with the vaccine’s efficacy is not a valid human rights ground under current human rights legislation anywhere in Canada.
Action item: Any vaccination policy adopted should include statements regarding accommodation.
Whether an employee is vaccinated or not vaccinated is personal health information.
Employers may only collect such information if it is connected to a work-related purpose. (In certain provinces, legislation may apply to such information that needs to be reviewed before collecting this information.) Employers should limit information they collect to information that is:
- Necessary for workplace safety;
- Not overbroad (i.e., information that goes beyond just the vaccination status of the employee);
Any information collected regarding vaccination status should be stored securely (password protected or in a locked cabinet if physical) and should only be accessible to the individuals who need to know and administer the policy.
Action item: Your vaccination policy should spell out privacy measures specifically.
A Focus on Encouragement and Education
Vaccination policies may require mandatory vaccination, but do not overlook their educational tilt!
Help educate your employees about the impact and importance of the vaccine. Some helpful links include:
- Government of Canada Vaccine Information and FAQs
- Ontario’s Vaccination Program
- COVID-19 FAQs (Alberta)
- BC’s Vaccine Information
- Nova Scotia’s Vaccine Information
Check your local or provincial health service for additional information.
How to Write a Vaccine Policy
Drafting a vaccine policy for your business is no easy task. You have to balance the law, employee rights, and differentiating opinions. Navigating this rocky terrain can be stressful – in an already stressful time.
That is why writing a vaccine policy is best handled by an expert in government employment legislation or at least reviewed by one.
At Bridge Legal & HR Solutions, we have both employment lawyers and HR experts that work hand in hand to help businesses of all sizes. If you are looking for or would like to discuss vaccination policies, please reach out to us! Either send us an email at firstname.lastname@example.org or call us at 647-794-5442.