COVID-19 vaccinations, the workplace and the law

The weekly arrivals of vaccine shipments bring with them the hope that work life will soon return to "normal." However, it also raises questions. Since business re-openings depend in part on vaccination rates, should employers encourage employees to get vaccinated? To take it a step further, could employers require vaccination as a condition of returning to work? Is there a legal framework for this?

Regardless of the approach your workplace takes, start by developing a vaccination policy, says Norm Keith, Partner, Fasken, an employment law firm based in Toronto.

Speaking in the session "OHS Law, Vaccinations and the Workplace: What Employers Need to Know" at the recent Partners in Prevention 2021 Virtual Conference and Trade Show, Norm explained how Ontario's legislative framework may support employers who ask for proof of vaccination, and outlined five essential elements to make a policy "fair, respectful and reasonable," regardless of the approach taken.

Under the Occupational Health and Safety Act, employers in Ontario have "tremendously high legal obligations to keep workers and third parties that interact with our employees safe," said Norm. Of particular relevance is the general duty clause 25(2)(h), which requires employers to take every precaution reasonable in the circumstances for the protection of workers.

"What happens if employers neglect to take any kind of action to ensure employees are vaccinated before they come back to work?" Norm asked. His answer: "You may very well be alleged to have failed to comply with the clause."*

Norm highly recommends putting a COVID-19 vaccine safety policy in place, whether or not the workplace decides to require proof of vaccination.

5 policy elements

Here are five possible considerations.

1. Inform employees. Explain the purpose of the policy and provide authoritative information on the virus and authorized vaccines, and the vaccination process.
2. Discuss the Occupational Health & Safety Act, the general duty clause, and Ontario's Internal Responsibility System, which set out employer, supervisor and worker duties for keeping the workplace safe in the context of a pandemic.
3. Outline what proof of vaccination looks like. For example, said Norm, "do you want to visually see proof and record? Do you want to track the second dose? Do you want to track for your aggregation of data? I think from an employer risk perspective, and respect for the privacy perspective, the best rule of thumb is to collect as little vaccine information as possible."
4. Discuss exemptions under the Human Rights Code. The code protects workers with disabilities from discrimination. For example, the risk of an allergic reaction to the vaccine would be considered a medical disability. Another possibility is an exemption due to religious beliefs, says Norm. Employers are required to accommodate exempted workers, on an individual basis, to the point of undue hardship. "What accommodation looks like will vary depending on the nature of the disability, the nature of the work, and the opportunities for alternative work," said Norm.
5. Address privacy issues. Concerns about the collection and use of personal data are growing. Address these concerns by outlining why you are collecting the information - to keep all workers safe - and how you will use it. "You have to store it securely. You can't use it for purposes other than the stated purpose. And it's always a best practice to secure consent."

If your workplace decides to require proof of vaccination, ensure the policy explains why. "Make the argument for why your policy makes sense and is designed for the safety and health of your employees, and third parties with contact with your workplace," said Norm.

Additional resources

Information in these resources could help you address key issues in a vaccination policy.

• Ontario's COVID-19 vaccination plan
• COVID-19 and mandatory vaccination: Ethical considerations and caveats (World Health Organization policy brief)
• The facts about COVID-19 vaccines (Government of Canada)
• What you need to know about on-site COVID vaccinations (article)
• COVID-19 Guidance: Considerations for Antigen Point-of-Care Testing
• Could on-site COVID testing be an option for your workplace? (article)
• new rapid testing portal for essential businesses in Ontario
• 4 reasons to remain vigilant as vaccinations begin (article)
• Is It COVID-19, Influenza or Another Illness? Workplace Considerations

Reference

* While prosecution under the general duty clause 25(2)(h) is a possibility, so far no jurisdiction in Canada has made the COVID-19 vaccination mandatory. For example, Dr. David Williams, Ontario's chief medical officer of health, confirmed in a COVID-19 update in December 2020 that the province had no plans to make vaccinations mandatory. However, he cautioned, it’s possible they could be required "for access or ease in getting into certain settings," such as schools, hospitals and long-term care facilities.

The information in this article is accurate as of its publication date.