The question on many a mind is whether or not employers will have the ability to make vaccinations mandatory in their workplaces, and/or what sort of protocol they’ll be expected to put in place. While the science is still evolving in this area, what we do know is that ‘herd immunity’ needs to be achieved in order for vaccinations to be effective. At this time, however, there’s still a significant lack of consensus on what will constitute the appropriate level of immunity. Some researchers indicate that as few as 60% of the population will need to be vaccinated to achieve it, whereas others have said up to 90%. As more and more demographics of the population begin to get vaccines, we will, in turn, understand more about whether vaccines can or should be mandatory – all or in part.

Where legislation is concerned, there’s nothing in current occupational health and safety legislation (OH&S) in BC indicating that vaccines of any sort are mandatory; however, employment can be made contingent upon employees following bona fide employer safety protocol (COVID related or otherwise). While policy around flu vaccinations has been considered as a benchmark, research indicates that COVID must be viewed in a different light, given it is “much more infectious and deadly, vaccines are much more effective (95% vs 20-60% for flu), and there has already been considerable research on the transmission of the virus and efficacy of the vaccine.”

Currently, flu vaccines are mandatory in some organizations (typically within healthcare), but have seen their fair share of objections and challenges, from employees and unions alike. Despite ongoing appeals, some workplaces (e.g. the BCCDC) continue to require flu vaccinations even for those who aren’t considered front-line workers. One of the stipulations for doing so is providing alternatives (e.g. wearing masks during flu season) for those who are unable/unwilling to get a vaccine. Bi-weekly mandatory COVID testing has also been upheld in some workplaces which may lead into subsequent expectations for vaccination.

Despite the evolving and still uncertain legislative landscape, there are a number of factors that employers should be aware of, and steps they can take at this time.

What do you need to know/keep in mind?

Privacy & Confidentiality – Whether or not vaccines become mandatory all or in part, just as is the case for an employee becoming infected with COVID specifically, there are privacy implications related to vaccination. While you and your employees may want to know whether all employees are or intend to become vaccinated, obtaining this knowledge is essentially collecting personal information. While certain workplaces (e.g. healthcare) may have a legitimate reason for doing so, does your organization, and if so, what is that reason? Assuming you do have a bona fide purpose, how you go about it is equally important.

Human Rights – As is the case for any medical condition and associated accommodation, if you do have a mandatory policy in place and an employee refuses, or you don’t and an employee doesn’t want to come to work as a result, they would need to have medical confirmation. Regardless of circumstances, we recommend that the medical confirmation be comprehensive in terms of impact on work, prognosis, possible accommodations, and timeframe (i.e. as opposed to an illegibly scrawled 3” x 5” note).

Flexible Workplaces – Again, while nothing is conclusive in this area, it is anticipated that organizations who are more flexible (e.g. currently have employees effectively working remotely and/or are able to allow for flexible shifts/schedules), will be less clear-cut where legislation is concerned. In other words, if there’s not a reason why an employee can’t work remotely and they don’t want to get vaccinated, you may have less recourse as an organization.

Employee/Employer Beliefs – Whatever your (as an individual) or your employees’ beliefs are about COVID or vaccinations in general, promoting them openly is similar to sharing/promoting religious or political beliefs and has no place at work.

What can you do now?

While it’s still early days and too soon to justify mandatory vaccinations, there are some current steps you can take. For example:

  • You can clarify your stance as an organization that, as is the case for the greater population, meeting the threshold of vaccinations within your workplace is the general objective for the safety of all; should you do so, however, be clear what that means and does not mean (including that you’re not saying it’s mandatory).
  • You can share information regarding vaccinations – so long as it’s official public health information such as the BCCDC vaccination schedule and you do so infrequently (i.e., not sending out daily or weekly posts on the topic).
  • While you should not make hiring or other employment decisions based on whether someone is getting vaccinated or not, you can provide incentives for doing so (e.g. providing paid time off for getting vaccinated that doesn’t come out of their sick banks).
  • You should not allow anti-vaccination, conspiracy theory, or fear mongering about not getting vaccinated commentary to take hold – and certainly don’t be the leader of said commentary.
  • If you haven’t started doing so already, think about what your organization will look like in the Fall, Winter or early next year. If you have employees working remotely and all is going well in terms of productivity, is there a reason why you’d expect them back in the office (“the way it was before”), particularly if vaccination (or not) is of concern?

In sum, while there’s nothing yet conclusive on whether vaccines will be mandatory and associated protocol, it is important to be aware of the factors impacting the decisions you may make, and plan accordingly.