Labour & Employment Newsletter

No Jab, No Job? What are the Considerations for Mandatory Vaccination Policies?

Winter, 2021

With the approval of COVID-19 vaccines in December 2020, a return to normal life looks increasingly possible. Many employers are now evaluating their options for the vaccination of their employees. There are several legal implications to consider regarding the implementation of a mandatory vaccination policy in most workplaces.

This newsletter addresses some of these concerns and provides recommendations when developing an effective and enforceable policy requiring that employees get a COVID-19 vaccine.

Introduction

In early December 2020, Health Canada approved a Pfizer COVID-19 vaccine for use in Canada. Shortly after, a second COVID-19 vaccine from Moderna was also approved. Though significant challenges and uncertainties remain regarding the distribution of these vaccines, many employers are starting to evaluate their options with respect to requiring that employees get a COVID-19 vaccine.

Can an employer require employees to receive a vaccination?

There was no definitive answer to this question. Generally, it will be challenging for an employer to impose a mandatory requirement on their employees to receive a COVID-19 vaccination.

In some circumstances, it is possible for an employer to require proof of vaccination as a condition of employment, particularly if the employees work with vulnerable or immunocompromised clients. However, this does not apply to all sectors.

While there is no recent precedent for a widespread vaccination effort, some guidance can be found in caselaw involving other infectious diseases, most notably the flu.

Caselaw regarding Vaccinate or Mask Policies

A common approach to requiring vaccinations is the implementation of a “Vaccinate or Mask” (“VoM”) Policy which means that employees must get a vaccination or wear a mask while at work.

Canadian caselaw on these policies is divided. In British Columbia, a challenge to the implementation of a VoM Policy was upheld in 2013. In Ontario however, a similar VoM Policy was overturned in 2015 in Sioux Area Hospital and Ontario Hospital Association and Ontario Nurses Associations (the “SAH Decision”).

Background

In the SAH Decision, Arbitrator Hayes considered a VoM Policy which had been introduced at the Sioux Area Hospital (“SAH”) in 2013. The SAH required that all health care workers wear masks during flu season, roughly a six-month period. Employees were not required to wear masks if they had received a flu shot.

The Ontario Nurses Association (“ONA”) challenged the VoM Policy, alleging that it was an unreasonable exercise of management rights. They also alleged that the policy was implemented for the purpose of driving up vaccination rates amongst health care workers, not to protect the health of the employees and patients. The ONA also claimed that the VoM Policy violated the personal health care information by allowing employees who had received a flu shot to work without a mask. Signs were posted in the workplace stating that those who had received a vaccine were not required to wear a mask.

The SAH defended the VoM Policy on the basis that it was necessary to prevent the spread of the flu within the facility. They claimed that the VOM Policy appropriately balanced the protection of employees and patients with their privacy rights.

Analysis

Arbitrator Hayes conducted an analysis of the reasonableness of the VoM Policy. This analysis followed the structure in Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co (1965), 16 LAC 73 (“KVP”). Under the KVP test, a unilaterally imposed employer policy in a unionized environment is valid if:

  1. It is not inconsistent with the collective agreement;
  2. It is not unreasonable;
  3. It is clear and unequivocal;
  4. It is brought to the attention of each of the employees affected before being implemented;
  5. The employees are notified that a breach of the rule could result in the termination of their employment; and
  6. The rule is consistently enforced by the employer.

Here, the critical issue was whether the VoM Policy was reasonable.

Arbitrator Hayes was troubled about the alleged purpose of the VoM Policy. He found that the SAH was motivated to develop and introduce the VoM Policy in large part because of low immunization rates in the facility and that the underlying purpose of the VoM Policy was to drive up immunization rates, not safety. In reaching this conclusion, Arbitrator Hayes relied on the inconsistencies within the VoM Policy, including that it did not apply to visitors or volunteers within the facilities, individuals who could also be sources of infection as well as uncertain expert testimony about the effectiveness of the measures set out in the VoM Policy.

With respect to the privacy concerns, Arbitrator Hayes accepted the position that to the extent that the personal health information of any employee was disclosed, it was covered by an exclusion under the applicable privacy legislation.

Finally, Arbitrator Hayes took issue with the voluntariness of the immunization, as employees were required to wear a mask while at work if they did not receive a flu shot.

Considerations for Vaccination Policies

While VoM policies are only one possible approach an employer can take when looking to implement policies requiring vaccinations, employers need to consider a number of potential issues.

Unionized employers must begin by verifying the terms and conditions of the applicable collective agreement.

The following factors should be taken into account by all employers.

  1. Nature of the Workplace

A critical consideration will be the nature of the workplace. Employers in the health care sector, particularly long-term care facilities, will have a much different evaluation on this issue as compared to other sectors, such as industrial or office settings. Working with clientele who are at an increased risk from COVID-19 complications is a factor that will favor stricter or even mandatory vaccination policies.

Similarly, if employers have staff working in critical infrastructure, such as water treatment facilities, a stricter vaccination policy can likely be imposed.

In some cases, a mandatory COVID-19 vaccination may be justified because the nature of the work includes high risk of transmitting COVID-19 and other factors make it impossible to work remotely or follow social distancing guidelines.

  1. Overall Purpose

As seen in the SAH Decision, an improper (or ulterior) purpose can weaken or invalidate an employer policy. Any vaccination policy must focus on its true purpose – the protection of employees and clients/residents.

There are several characteristics of the COVID-19 pandemic that distinguish this situation from the facts in the SAH Decision. Most notably, the rate of infection and consequences of COVID-19 are much more serious than as compared with the typical flu season. Also, the stated effectiveness of the COVID-19 vaccines is much higher than the regular flu shot. This effective rate mitigates against a key criticism in the SAH Decision regarding the protection provided by the annual flu vaccine.

Further, given the severity of the pandemic,  employer policies requiring mandatory COVID-19 testing every two weeks have been upheld in recent decisions.

  1. Employee Privacy

When implementing a vaccination policy, employers must be aware of the potential for the inadvertent disclosure of personal health information of their employees. This disclosure may occur through directly or indirectly, including the identification of employees who have not received a vaccine through a requirement to wear a mask.

Employers should also consider whether they are going to request that employees voluntarily disclose their vaccination status and how this sensitive information is going to be securely stored. Steps must be taken to protect the personal information of employees.

If an employee refuses to disclose this information, employers will have to treat these employees as unvaccinated. In some industries, if an employee refuses to disclose their vaccination status, the employee may be placed on unpaid leave until the circumstances change.

  1. Human Rights Concerns

Some employees may refuse or be unable to receive a COVID-19 vaccine. These reasons may include a protected characteristic covered by human rights legislation, such as religion or disability, or a valid medical reason, such as an underlying medical condition that would make it dangerous for the employee to be vaccinated.

If an employee is unable to receive a vaccine, the employer must consider whether it is possible to accommodate this individual. Potential accommodations can include working from home, the assignment of new duties, or an extended leave of absence.

An area of concern for employers is vaccine hesitancy or anxieties surrounding vaccinations. While it is clear that employers must accommodate physical disabilities as well as mental health concerns, it remains to be seen whether an employer is required to accommodate anxieties surrounding vaccines.

  1. Workplace Safety Concerns

Under provincial workplace safety legislation, employers have a duty to protect employees from hazards in the workplace. Employers should work with the respective committees in the workplace to ensure that they are following the workplace policies regarding occupational health and safety.

Implementation

Employers should be clear about their expectations respecting COVID-19 vaccinations. Policies should be widely circulated and readily available to all employees.

As much notice as possible should be given about the implementation of these policies. It is recommended that employers implement a vaccination policy before the vaccine supply becomes widely available.

If an employee refuses to follow an employer policy regarding vaccinations or other preventive measures to limit the spread of COVID-19, in some limited circumstances an employer may be able to terminate the employment of this employee.

Conclusion

The COVID-19 era is unprecedented. As the vaccination roll-out continues across the country, there will be further challenges surrounding the vaccination of employees and the general population.

Employers should be prepared to implement vaccination policies that follow any applicable agreements in the workplace and that are focused on protecting their work force and clients.

This newsletter is produced by Wickwire Holm to keep our clients and friends informed of developments in the law and emerging issues. It is intended for general information purposes only. In preparing and circulating this newsletter, Wickwire Holm is not providing legal or other professional advice. Readers are encouraged to consult their professional advisers before taking any action on the basis of information contained in this newsletter. If you have any questions about any issues raised within this newsletter or a related issue, please contact us at wh@wickwireholm.com or 902.429.4111.