With widespread availability of the COVID-19 vaccine and the recent vaccination mandate announcements from the Manitoba Government, employers are grappling with what vaccination measures they should implement in their workplaces. Employers covered by the provincial government’s vaccination mandate have clear direction from the province that their employees must either be fully vaccinated or subject to regular COVID-19 testing. For all other employers in the Province including the majority of the private sector, the roadmap is far more unclear.
While both the federal and provincial governments have encouraged private sector employers to impose vaccination policies, it is not mandatory at this time. Employers are responsible for determining the appropriate balance in their workplace between health and safety considerations and the human rights and privacy interests of their employees.
The key question is: “can an employer implement a mandatory vaccination policy?”
The answer depends on whether or not the policy is a true mandatory vaccination policy (a vaccination or termination/layoff policy), and how much risk an employer is prepared to take on.
Generally, any policy implemented in a workplace that differentiates between those who are fully vaccinated and those who are not will create some degree of liability. This is simply due to the fact that none of these policies or measures have been challenged in a Canadian court or tribunal. Despite the uncertainty, employers should not let the possibility of risk prevent them from implementing any sort of vaccination or COVID-19 safety policy. Complete inaction could create liability under workplace safety and health legislation for failing to provide a safe workplace.
The level of risk created when implementing a vaccination policy will depend on the specific requirements set out in the policy. A true mandatory vaccination policy requiring employees to be vaccinated or subject to termination/layoff will create the highest level of risk, as it requires employees to be vaccinated (and provide proof of their status) in order to remain employed. Due to this high level of risk, employers should be very cautious in considering a true mandatory vaccination policy and first determine if they can use lesser measures to achieve the same safety objectives.
A “vaccination or” policy, where an employee can choose between providing confirmation of being fully vaccinated and another workplace safety measure is likely a better option for most employers. It will still carry risk, but significantly less risk as the employee is not being compelled to receive vaccination in order to keep their job. Examples of these types of policies include requiring an employee who has not provided proof of full vaccination to submit to regular COVID-19 testing, wear a mask at all times in the workplace, work from home, or some combination of these requirements.
Ultimately, every employer will need to consider what type of policy is necessary in its workplace, as any challenge to an employer’s policy is going to weigh safety interests against privacy and human rights interests of their employees. Employers that have regular interaction with vulnerable populations such as those in a healthcare setting have a stronger safety justification for implementing vaccination measures than an office setting, but risk will still exist.
An employer’s risk created from implementing a COVID-19 vaccination policy primarily comes from three sources:
- liability for the wrongful dismissal or constructive dismissal of an employee’s employment for those who refuse to be fully vaccinated or comply with other COVID-19 workplace measures;
- liability for a human rights complaint where an employee alleges that a vaccination or other COVID-19 policy are discriminatory based upon a protected personal characteristic; and
- liability for a breach of privacy under applicable legislation as a result of asking an employee to disclose their vaccination status.
Additionally, any employer in a unionized workplace will be subject to the risk of their union challenging the reasonableness of their vaccination policy.
What should an employer do when implementing a COVID-19 vaccination policy?
There are steps an employer can take to mitigate some of these risks detailed above. Accordingly, when implementing a COVID-19 vaccination policy, an employer should:
- Consider the specific safety challenges unique to its workplace when developing a policy, refraining from using a cookie cutter approach;
- Ensure the policy is in writing and clearly communicated to all employees. In this regard, the vaccination measures should be set out in a formal policy, posted in the workplace and provided to every employee;
- Where possible, provide for a period of time between introducing the policy and enforcing it, so that employees can consider their options and obtain vaccination if they have not already done so;
- Obtain as little personal health information as possible when confirming employees’ vaccination statuses, and ensure that all information collected is kept confidential and properly secured;
- Enforce the policy consistently;
- Communicate to employees that if they cannot be vaccinated or otherwise comply with the policy for bona fide reasons protected by human rights legislation, the employer will meet its duty to accommodate; and
- Be adaptive to the ever-changing landscape of COVID-19 safety challenges and public health orders, by updating its policy on a frequent basis as circumstances dictate.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.