Vaccine Policies and the Workplace
*The following is provided for commentary only and is not considered legal advice.
Mandatory COVID-19 vaccine policies are becoming increasingly common in workplaces across Ontario with the rise of the fourth wave of the COVID-19 virus. Many major employers, including the Cities of Toronto and Ottawa, the Toronto Transit Commission and a number of post-secondary institutions, including Seneca College, University of Toronto, Western University and the University of Ottawa, have implemented mandatory vaccine policies. It is expected that this practice will continue in many private sector workplaces.
Two of Canada’s largest construction employers, EllisDon and PCL, jointly announced on September 14th that their employees are required to be fully vaccinated by November 1, 2021. This joint announcement marks the first and a significant step taken by industry leaders, which will likely be followed by many other employers in the construction industry, and elsewhere. On September 14th, Ontario Premier Doug Ford also announced the provincial vaccine passport system which requires Ontarians to show proof of vaccination in order to access certain in-door businesses and settings, such as restaurants and bars. The provincial proof of vaccination system began on September 22, 2021.
The increasingly common practice of vaccine policies has many wondering whether these types of policies are permitted at law. Are workplaces free to introduce vaccine mandates? Can an employee be disciplined for non-compliance? These are questions that we are often asked by both employers and employees. As is often the case, the answer is not entirely clear and will depend on the specific circumstances.
Ontario employers are obligated under the Occupational Health and Safety Act (the “OHSA”) to take every precaution reasonable in the circumstances to protect workers and to keep workplaces safe and free of hazards. This duty includes protecting workers from hazards posed by infectious diseases. Before the widespread availability of the COVID-19 vaccine, employers could be considered to have been taking “every precaution reasonable” by following public health guidelines with respect to face coverings, social distancing, remote work arrangements, frequent cleaning and sanitization of workplaces, among other measures. At present, with the widespread availability of the COVID-19 vaccine, the threshold for what is considered “every precaution reasonable” has arguably changed. Enter the implementation of vaccine policies.
In the construction industry, for example, the frequent mobility of workers, along with the difficulty of maintaining physical distance on work sites are factors that may contribute to a higher risk of contracting and/or spreading the COVID-19 virus. For these reasons, a workplace policy requiring vaccination of workers against the COVID-19 virus, may be considered reasonable in order for the employer to comply with its obligations under the OHSA. By contrast, in a workplace where workers are able to either work remotely or maintain safe distances from one another, a mandatory vaccine policy may be considered less reasonable.
Key considerations for employers when drafting workplace vaccine policies are to ensure that the policy is applied consistently to all employees, and importantly, to ensure that any policy complies with Ontario’s Human Rights Code (the “Code”). Employees seeking exemptions or accommodations under a workplace vaccine policy due to a Code-related ground must be accommodated by the employer to the point of undue hardship. A Code-protected ground could include, for example, a medical disability which prevents an employee from receiving a vaccine, and/or a religious practice or belief. The vaccine policies devised and administered by employers must be flexible in order to accommodate employees seeking vaccine exemptions. In cases where employees’ vaccine exemptions are granted, employers are required to accommodate by implementing alternative measures to ensure a safe workplace. These measures could include remote work arrangements, routine rapid testing for COVID-19, social distancing, face coverings, and/or relocating employees to worksite with lower risk transmission. In some cases, an unpaid leave of absence may be considered an appropriate accommodation for an employee who is unable to comply with a workplace vaccination policy.
In terms of whether an employee may be disciplined for a failure to adhere to a workplace vaccine policy is a largely fact-specific issue. Employers would be wise to seek legal advice before implementing vaccination policies and/or before implementing disciplinary measures in relation to such policies as this legal landscape is ever-changing and difficult to navigate.
By: Laura Buck, Employment Lawyer and Summer Xia, Articling Student at Sorbara, Schumacher, McCann LLP