Over the past year, employers have sought to operate safely and prevent the spread of COVID-19 in the workplace by implementing vaccination policies. Now that booster shots are available, employers should take a second look at their vaccination policies.
This blog offers an overview of current provincial and federal medical recommendations and restrictions, and provides some guidance to employers for maintaining effective vaccination policies while mitigating legal risks.
What You Need to Know
As of the publication of this blog, Health Canada has authorized but not mandated or recommended COVID-19 booster shots to healthy adults over the age of 18. Accordingly, employers seeking to update their vaccination policies’ definition of “fully vaccinated” to include a requirement that their employees receive the booster shot will potentially face higher risks associated with human rights or privacy challenges.
Nevertheless, recent Health Canada guidance shows that booster shots are necessary for vaccine effectiveness, as vaccine protection is shown to decline in the months after the first two doses.
Employers that are considering updating their vaccination policies’ definition of “fully vaccinated” ahead of public health recommendations can do so, but may wish to consider the following best practices.
- Understand the time periods relating to booster eligibility in your jurisdiction. Each province has implemented its own guidance on how much time must pass after a person has received their first two doses of a COVID-19 vaccine before they are eligible for a booster dose of an approved mRNA vaccine.
- Consider implementing blanket booster timelines, rather than tracking each employee’s individual vaccine eligibility. The latter approach may require collecting or storing additional employee medical information.
- Remain adaptable to health exemptions. As more information about the health risks associated with booster shots becomes available, vaccine policies should accommodate for and remain adaptable to individuals’ health limitations and restrictions.
Current Federal and Public Health Recommendations
While Health Canada has authorized the use of mRNA COVID-19 vaccines in adults aged 18 and older, the National Advisory Committee on Immunization (“NACI”) recommends booster shots may be offered six months after a second dose has been administered. For those who have been infected after receiving a second dose, NACI recommends waiting three months from the onset of symptoms or a positive test result before getting a booster shot.
Each province has its own requirements relating to the minimum amount of time that must pass after a person has received their second dose of a COVID-19 vaccine before they become eligible for a booster shot (the “Eligibility Period”).
To date, provincial Eligibility Periods range between three to six months:
- Three months: Saskatchewan, Ontario and Quebec
- Five months: Alberta
- Six months: British Columbia, Manitoba and Prince Edward Island
- Nova Scotia and Newfoundland and Labrador have implemented Eligibility Periods of 168 days and 22 weeks, respectively, both of which are approximately six months.
Best Practices for Employers: Understanding Applicable Eligibility Periods and Setting Effective Deadlines
Employers should keep a close eye on evolving public health recommendations and continuously reassess vaccination policies to best manage the risk of COVID-19 transmission in the workplace. They will also want to ensure their vaccination policies mitigate legal risks as much as possible.
It is important that employers are aware of the applicable Eligibility Period in their jurisdiction and understand that such periods may be subject to change as new information becomes available. Employers should use applicable Eligibility Periods to determine reasonable deadlines for employees to submit proof that they have received their booster vaccination.
Generally speaking, employers may wish to set a blanket deadline that all employees must adhere to rather than require proof of vaccination according to individual employee eligibility. Individual vaccination deadlines could result in additional costs to an employer because of the need to track and monitor employee booster eligibility. Further, vaccination policies that base deadlines on individual eligibility may require employers to collect additional medical information from employees if they had not previously collected employee vaccination dates. Employers should seek to limit the collection, use and retention of medical information as much as possible.
Workplace vaccination policies requiring booster shots should also continue to provide for medical-related exemptions that reflect current public health recommendations.
Finally, the consequences for non-exempt employees refusing to get “fully vaccinated,” as defined by an employer’s vaccination policy, should be clearly set out in the policy and specifically acknowledged by employees.
Seek Legal Advice
Our labour and employment team is available to assist employers as they consider their workplace policies and approach to managing their workforce in light of the continually evolving COVID-19 pandemic. Please contact a member of our labour and employment team to learn how we can help.
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.
Authors: John Agioritis, Julie Ward