“Although Court decisions on the enforceability of COVID-19 workplace vaccination policies have not yet emerged in Canada, recent arbitral jurisprudence confirms that vaccination policies, with certain exceptions, will be considered reasonable.”
As the COVID- 19 pandemic wanes on, many businesses have implemented vaccination policies as part of complying with public health recommendations and their duty to take all reasonable measures to ensure the health and safety of their workers.
Overview of Legal Context
Under Ontario Reopening Ontario Act, Rules for Areas at Step 3 and at the Roadmap Exit Step (O. Reg 364/20) any business or organization open for business is required to operate “in compliance with the advice, recommendations and instructions of public health officials…”. (emphasis added)
In August 2021, the Medical Officers of Health for Toronto, Halton and Hamilton each issued their own “strong recommendation” that local employers institute a workplace vaccination policy to protect their employees and the public from COVID-19. Similarly, the Medical Officer of Health for Peel issued a “strong recommendation” that every Peel business update its safety plan to address vaccination.
On the basis of the language of O. Reg 364/20 and these recommendations, any business or organization open for business in Toronto, Halton or Hamilton must have a vaccination policy and any business or organization open for business in Peel must update its safety plan to address vaccination.
In September 22, 2021, the Ontario Human Rights Commission released a Policy Statement on COVID-19 Vaccine Mandates highlighting that while the COVID-19 vaccine remains voluntary, mandating and requiring proof of vaccination to protect people at work or when receiving services is generally permissible under the Human Rights Code, as long as protections are put in place to make sure people who are unable to be vaccinated for reasons related to the Code are reasonably accommodated. [See https://www.ohrc.on.ca/en/news_centre/ohrc-policy-statement-COVID-19-vaccine-mandates-and-proof-vaccine-certificates ]
Ontario’s Occupational Health and Safety Act (OHSA) does not specifically address vaccination policies, however it does impose, amongst other things, a general duty that employers:
- take every reasonable precaution to protect the health and safety of workers,
- ensure that equipment, materials and protective equipment are maintained in good condition, and
- provide information instruction and supervision to protect worker health and safety [OHSA s. 25]
Although Court decisions on the enforceability of COVID-19 workplace vaccination policies have not yet emerged in Canada, recent arbitral jurisprudence confirms that vaccination policies, with certain exceptions, will be considered reasonable. These recent decisions highlight the importance of employers assessing mandatory vaccination policies in the specific context of the circumstances, dangers and hazards associated with the workplace, the applicable collective agreement and any applicable legislated or regulatory requirements. Employers are to ensure that the policies are reasonably necessary and involve a proportionate response to the real and demonstrated risk or business needs. [see United Food and Commercial Workers Union Canada Local 333 and Paragon Protection Ltd ; Electrical Safety Authority and Power Workers’ Union ]
In addition to this legal context, vaccine mandates are now in effect for specific high-risk sectors in Ontario and certain federally regulated workplaces.
Ontario High Risk Sector Mandates
The Ontario Government has enacted COVID-19 vaccine mandates for certain high-risk sectors including health care workers, long-term care workers and educational workers. See the following Government of Ontario news releases for guidance about these specific sectors:
Long-term Care https://news.ontario.ca/en/release/1000917/ontario-taking-additional-steps-to-protect-long-term-care-home-residents
Federally Regulated Workers
In October 2021, the Government of Canada introduced a COVID-19 vaccine mandate for all federal public servants and federally regulated employees working in air, rail, and marine transportation sectors, and travelers on these modes of transportation. More recently, on December 7, 2021, the federal government announced that it will propose regulations under Part II of the Canada Labour Code to make vaccination mandatory in all remaining federally regulated workplaces.
Vaccination policies can vary based on business sector, applicable laws, population or specific workplace risk factors, union buy in (if applicable) and several other key considerations. An overview of key considerations is provided below:
Key Considerations
Reasonableness– employers should weigh the risk of COVID-19 transmission in their workplaces with employee’s privacy rights and then determine whether a mandatory vaccination policy is reasonable and necessary, including the effectiveness of other protection measures (masks, hand washing, distance, enhanced cleaning, option of remote work, etc.) at mitigating the risk of transmission in the workplace. Consultation with employees and/or union representatives prior to implementing a mandatory policy is recommended. Relevant factors can include customer policy requirements where services are being provided in other (customers) work locations.
Privacy Rights– Employers should request as little medical information as possible and ensure personal information collected is used only for the limited purpose stated and safeguards are implemented protecting medical information from unauthorized use or disclosure.
Exemptions and Accommodation– An employer has a duty to accommodate any refusals to be vaccinated based on a valid medical exemption or Human Rights protected ground up to the point of undue hardship.
Education and Respect in the Workplace– Employers are advised to provide vaccine information from credible sources, inform employees who they should contact in the organization with any concerns and questions, and ensure measures are in place to provide and maintain a respectful workplace free of any form of harassment, including harassment related to a worker’s decision to be vaccinated or not.
Ongoing Review– The COVID-19 pandemic is fluid and ever changing and employers need to continuously assess their workplace circumstances and update policies as circumstances change.
Refusals to Comply- Careful consideration is required in order to properly address refusals to comply with a vaccination policy. Refusals to disclose, or to become vaccinated (other than for valid medical or human rights-based grounds), is unlikely to meet the threshold needed to terminate an employee for cause. Accordingly, a termination other than for cause will trigger termination notice or pay in lieu of notice, severance (if applicable) and common law notice depending on the terms of the applicable employment agreement.
In the unionized context, it will be far more difficult to terminate an employee refusing to get the vaccine due to the requirement for the employer to prove just cause.
Further, an employee can treat a lay-off or leave without pay as a termination, also known as constructive dismissal, which would entitle an employee to termination pay.
Given the various considerations and complexities surrounding vaccination policies, we recommend obtaining legal advice when preparing a policy for your business.