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MANDATORY VACCINATIONS IN THE WORKPLACE: AN FAQ

Guest
August 24, 2021

As with many issues relating to COVID-19, the question of mandatory vaccinations in the workplace is fairly novel. As a result, it is not possible to give definitive answers on any given issue. Employment lawyers are being required to make judgment calls based on our understanding of the current legal framework, without the benefit of concrete decisions on these complex and difficult issues.

This post provides answers to some of the Frequently Asked Questions we have received in recent weeks, with the goal of assisting with issue-identification and risk mitigation, as well as providing guidance on legal considerations that should inform workplace decisions regarding vaccinations. This FAQ sheet will be updated periodically as the situation evolves.

This is general information only, and there are other considerations for certain environments (in particular, unionized workplaces, federally-regulated employers, or workplaces where a public health order may be in effect). If you are considering implementing a mandatory vaccination policy, or have questions as an employee about vaccination requirements, you should seek legal advice specific to your circumstances.

Can I require employees to be vaccinated before returning to work?

Yes, in certain circumstances, although we strongly recommend alternate work options are provided for employees who choose not to get vaccinated, wherever possible.

When addressing their obligation to maintain a safe and healthy workplace by minimizing the risk of COVID-19 transmission, Employers also need to consider and balance other important factors including the rights of their employees.

Having a mandatory vaccination policy is legitimate in certain safety-sensitive environments and where it is not possible to limit transmission risk through other measures. The BC government’s recent decision to require workers in long-term care homes to be vaccinated is a good example of such a situation.

However, there are several issues an employer needs to consider:

(1)    The context of their particular workplace, including:

a.       Is a mandatory vaccination policy necessary to ensure the safety of the workplace? Why?

b.       Are there lesser measures that will achieve the same effect?

c.       How can I minimize the impact of any such policy on my employees?

The onus will be on the employer to justify why a mandatory vaccination policy is necessary.

(2)    Privacy issues, particularly relating to disclosure of personal medical information (i.e. an employee’s vaccination status).

(3)    Human rights issues, including what options are available for employees who are unable to be vaccinated due to a protected ground (most commonly, medical reasons).

(4)    Constructive dismissal risks, and general considerations around employee morale, retention, and relationships in the workplace.

Am I allowed to ask employees their vaccination status?

Yes, provided you comply with the applicable privacy legislation relating to the collection, use, and disclosure of personal information, and are prepared for some employees to refuse to disclose that information (see below).

BC’s privacy legislation generally allows employers more latitude in collecting personal information where it is necessary to effectively manage the workplace; however, best practice is still to obtain informed consent, and to limit the use and disclosure of any such information as much as possible.

The various Canadian privacy commissioners (including BC’s) issued a joint statement regarding the use of vaccine passports. Although not specific to the issue of employer policies on vaccination status, the statement reviews what privacy considerations need to be made before requiring individuals to disclose their vaccination status.

In the statement, three important factors are identified:

(1)    Necessity – is disclosure of vaccination status necessary to achieve the health and safety objective? Are there less privacy intrusive, but equally effective, options available?

(2)    Effectiveness – is requiring confirmation of vaccination status effective at achieving its intended purpose?

(3)    Proportionality – am I collecting the least amount of personal health information necessary to achieve the intended purpose?

The best way to collect vaccination information from your employees, in most contexts, will be to make disclosure of vaccination status voluntary. In all cases, that information must be safe-guarded.

What if an employee refuses to disclose their vaccination status?

If an employee refuses to disclose their vaccination status, then you can require them to take other steps to ensure workplace safety (for example, wearing a mask, moving work locations, or providing confirmation of negative COVID-19 tests periodically).  These measures can be the same as those required of employees who do not get vaccinated.

Is it a human rights violation to make vaccinations mandatory in the workplace?

No, provided your policy accommodates individuals who are unable to be vaccinated for a reason that falls under the BC Human Rights Code, and it is necessary to ensure the health and safety of the workplace.

Employees with certain medical conditions may not be able to safely get vaccinated, while other employees may have religious beliefs that do not allow vaccination. In those cases, the employee must be accommodated up to the point of undue hardship.

There are circumstances where, in our view, vaccinations could be considered a bona fide occupational requirement (“BFOR”). In the context of COVID-19 vaccines, consider whether your workplace is a safety-sensitive environment AND if there are other, less discriminatory or intrusive measures that can be implemented to keep employee safe.

Traditional “safety-sensitive” environments have included construction sites, mines, or other physically hazardous workplaces, but in the context of COVID-19, a safety-sensitive environment could include anything from a dental office to a small seniors centre.

Is there any guidance from the BC Human Rights Tribunal on vaccinations?

Yes – the BC HRT published “A Human Rights approach to proof of vaccination during the COVID-19 pandemic” in July 2021, a document we encourage employers and employees to review.

This document provides helpful considerations, including the following key paragraph:

Vaccination status policies should be justified by scientific evidence relevant to the specific context, time-limited and regularly reviewed, proportional to the risks they seek to address, necessary due to a lack of less-intrusive alternatives and respectful of privacy to the extent required by law.

In applying such a vaccination status policy, duty bearers must accommodate those who cannot receive a vaccine to the point of undue hardship.

No one’s safety should be put at risk because of others’ personal choices not to receive a vaccine. Just as importantly, no one should experience harassment or unjustifiable discrimination when there are effective alternatives to vaccination status policies.

Is there any guidance from WorkSafe BC on vaccinations?

Yes, although the guidance does not relate to whether employers should or should not impose a mandatory vaccination policy, or the risks associated with doing so.

The guidance primarily relates to when an adverse reaction to the COVID-19 vaccine would be considered a “workplace injury.” Employers should be aware that whether vaccinations are required as a condition of employment will be a central question in that analysis.

In addition, employers should remember that there continue to be obligations relating to communicable disease prevention under Stage 3 of the province’s re-opening plan. These obligations do not include making vaccinations mandatory, although that may be necessary in certain environments.

Can I ask an employee for proof to establish an exemption to a vaccination policy?

Yes, an employer is permitted to ask an employee for confirmation that they are unable to be vaccinated for a reason protected under human rights legislation.

In the case of a physical or mental disability, an employer can require a doctor’s note confirming the employee has been advised against vaccination for medical reasons. In the case of other exemption requests, employers should use their best judgment in terms of what is required, and ensure they are consistent with respect to the level of proof requested.

Can an employee allege constructive dismissal on the basis of a vaccination policy?

In certain circumstances, there may be risk of a constructive dismissal claim being filed, on the basis that the employer has changed a fundamental term of the employment contract.

That risk can be significantly reduced by providing advance notice of any incoming policy respecting vaccinations, and providing an alternative for employees who choose not to be vaccinated (for example, if you are not vaccinated, you must continue working remotely).

Any tips for implementing an effective and enforceable vaccination policy?

A few key considerations if you are planning to implement a vaccination policy:

·         Give notice – this provides your employees with the opportunity to consider if they would like to be vaccinated, get clarification on what happens if they choose not to, and allows time for employees to be vaccinated, if they choose to.

A clear timeframe (i.e. this policy will take effect October 1, 2021) also reduces the risk of a constructive dismissal claim, as you have now given the employee advance, written notice of the changes being made to the workplace.

·         Offer incentives – in addition to increasing compliance, this can act as consideration for the changes (again, reducing the risk of constructive dismissal claims).

·         Make the policy temporary and subject to regular review – as with all COVID-19 issues, the situation changes rapidly. Requiring vaccinations may become more or less acceptable as time goes on, and depending on what scientific evidence is available regarding vaccine effectiveness compared to other measures (such as masking, hand washing, and physical distancing).

·         Consider framing – rather than having a mandatory vaccination policy, consider if a mandatory masking policy (with exemptions for vaccinated individuals) is more justifiable.

·         Respect privacy – ensure your policy addresses the issues around privacy relating to vaccination status, including a statement regarding how information that is disclosed will be kept secure.

·         Provide exemptions – there should be language around who may qualify for an exemption, how to request one, and what an alternate plan to vaccination looks like (work from home options, mandatory masking and physical distancing in the workplace, mandatory testing, etc.).

·         Document your process – be prepared to justify the imposition of the policy to decision-makers, if it is challenged. Why is it necessary? How was that decision reached? What steps were taken to minimize its impact on employees?

These issues are very fact-dependent and there is no substitute for solid advice on your specific situation. We want to help – call us now to discuss!