By Ron Minken, Tanya (Tejpreet) Sambi and James Moon
The Ontario Government is requiring all employers in select industries (such as hospitals, long term care homes, Colleges and Universities, etc.) to implement a vaccination policy by September 7, 2021 requiring proof of full vaccination, a medical reason for not being vaccinated, or completion of a COVID-19 vaccination educational session.
On August 20, 2021, the Toronto Medical Officer of Health “recommended” that all local employers institute a workplace vaccination policy. Given the language in Regulation 364/20 (Rules for Areas at Step 3 and at the Roadmap Exit Step) made under the province’s Reopening Ontario (A Flexible Response to COVID-19) Act, businesses are required to comply with any “advice, recommendations and instructions” from “a medical officer of health…requiring the business or organization to establish, implement and ensure compliance with a COVID-19 vaccination policy”.
Accordingly, all Toronto employers will be required to implement a workplace vaccination policy.
While it is a legal requirement for these employers to have a workplace vaccination policy, these employers may still be liable for various violations of an employee’s rights. Accordingly, there are several legal considerations employers must keep in mind when drafting the vaccination policies.
An employer requiring an employee to disclose their vaccination status or provide proof of vaccination may be seen as breaching an employee’s privacy rights. An employer may collect, use or disclose personal employee information only with the employee’s consent and for reasonable purposes, unless permitted otherwise by the Reopening Ontario Act or other legislation. Employers should be careful to only request the least amount of information necessary to determine whether an employee has been fully vaccinated.
A major consideration for employers is whether the vaccination policy may trigger a Human Rights complaint. Namely, employees may refuse to receive the vaccine based on one of the enumerated grounds under the Human Rights Code, such as disability, religion, sex (pregnancy) or age. If this occurs, an employer will have a duty to accommodate up to undue hardship and the employee may be entitled to refuse to comply with the vaccination policy. An Employer must then accommodate the employee’s refusal.
Pursuant to the Occupational Health and Safety Act, employers have a duty to protect their workers from workplace harassment. This includes implementing and enforcing a Workplace Harassment and Discrimination policy.
Requiring employees to disclose whether or not they were vaccinated may result in an employee, who is not vaccinated, to experience harassment and discrimination in the workplace by their vaccinated colleagues. Pressure to vaccinate may also be a form of harassment.
An employer should be mindful of the risk of harassment that unvaccinated employees may face and should educate all employees on the Workplace Harassment and Discrimination policy.
A constructive dismissal claim is triggered when an employer makes a fundamental and unilateral change to the terms of the employment relationship. While an employer may be able to reduce the likelihood of a constructive dismissal claim against them by giving employees notice of the new policy, an employee may nevertheless claim that the vaccination policy is a fundamental and unilateral change to the terms of their employment and that this amounts to a constructive dismissal of their employment. If an employee claims constructive dismissal, an employer may be at risk for paying statutory notice of termination, common law notice of termination, and potentially aggravated and punitive damages, which could be substantial.
An employee may refuse to disclose whether they were vaccinated or may refuse to be vaccinated based on their personal preference, such as a belief that vaccine is harmful, experimental, or that they require more information to make a decision. An employer must be sure to assess whether the refusal is based on an enumerated ground under the Human Rights Code or whether the refusal is based on a true personal preference.
If the refusal is based on a personal preference, what can employers do?
- Educate your employees. Employers should explain the importance of preventing COVID-19 transmissions in the workplace and how the vaccination policy may significantly decrease the risks. Credible sources are best. However, be fully prepared to respond to any questions or sources of information that the employee may provide to you.
- Find alternatives to accommodate your employees. Such accommodations can include: requiring unvaccinated employees to wear masks and PPE, maintain social distance, or alternatively, reconfigure the workplace, provide alternative hours or duties, or have unvaccinated employees work from home if possible.
- Terminate the employee, without cause, on the basis of a refusal to comply with the vaccination policy. However, employers should not terminate an employee for cause for the refusal to comply. Given the impending resignation boom and the shortage of skilled workers, it may not be advantageous to terminate an employee based on their refusal. Instead, an employer may wish to offer an alternative to requiring an employee to be vaccinated: regular rapid antigen testing – available at no cost from your local Chamber of Commerce or Board of Trade. This will result in a minimized risk of transmission in the workplace so that the employer complies with their duty under the Occupational Health & Safety Act to “take every precaution reasonable in the circumstances for the protection of a worker”.
General principles for drafting policies
Employers need to consider the following when drafting the vaccination policy:
- the terms of the policy are reasonable;
- the language in the policy is unambiguous; and
- the employees are warned that they will either be disciplined or dismissed for breach of the policy.
When drafting the vaccination policy, employers should and also ensure the vaccination policy is in writing, employees are informed of the policy and educated on it, and the policy provides reasonable alternatives to providing proof of vaccination status and exemptions for employees who refuse to vaccinate.
Consultation with Unions
If an employer’s employees are unionized, an employer’s decision to implement a vaccination policy will need to be reviewed in light of whether or not there is a collective agreement in place.
If there is a collective agreement, and the employer implements a vaccination policy without consulting with the union, it is possible that a union may file a grievance on behalf of an employee. In deciding whether or not a policy is valid and enforceable, an Arbitrator will consider the factors as outlined above.
Employers at a Crossroad
Employers have to grapple with the realities of adjusting to the new normal amidst the pandemic, particularly, the prevention of COVID-19 outbreaks in the workplace. Although a vaccination policy may help address the issue of COVID-19 transmission, without proper consideration as to what to include in the policy and how to implement and enforce the policy, employers may face harsh legal consequences for potential breaches of their employees’ rights.
Speak to an Employment Lawyer
As businesses are struggling with these issues, it is extremely important that employers consider what they should lawfully do and the potential for claims against them by employees and resulting liability.
If you require legal advice on vaccination policies and how to draft a policy and respond to an employee who is refusing to vaccinate, contact us today to speak with one of our lawyers or call us at 905-477-7011 for assistance prior to taking any steps that may expose you to legal liability.
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Please note that this article is for informational purposes only and does not constitute legal advice.
- Can Employees be Required to Vaccinate?
- VIDEO: Can an Employer Enforce Mandatory COVID-19 Testing?
- VIDEO: What can Employee do if an Employee Fails to Get Vaccinated based on Personal Preference?
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