The current state of mandatory COVID-19 vaccination policies in Canada
BC’s fall COVID-19 booster program is well underway for 2022, but the uptake has, so far, been low, in comparison to the previous booster. This may be due to many organizations no longer having mandatory vaccine requirements, elimination of the vaccine passport, easing travel restrictions/measures and societal/workplace pressure, as well as an overall “vaccine fatigue.”
As fall sets in and the winter flu/cold (and yes, now COVID-19) season approaches, the question for some employers is whether mandatory vaccine policies are still enforceable.
This question was addressed recently, as conveyed by Mathews Dinsdale. Two Ontario arbitrators held that employers can reasonably require employees to have at least two doses of a COVID-19 vaccine, even despite the variants. The arbitrators both stated that two doses continue to be reasonable, given the unchallenged scientific evidence of the two-dose efficacy. However, both noted the importance of clear and consistent policies.
The importance of clear, consistent, and unambiguous vaccination policies
As has always been the case (and as we outlined in a previous post), employers should have clear, consistent, and unambiguous policies and procedures related to vaccine requirements. One of the recent legal challenges was based on the organization’s policy not being clear on the consequences. Although the challenge was rejected (on the grounds that the company did indicate that discipline would result), this case speaks to the importance of clarity. More specifically, employers should communicate to employees:
- What their policy requires in terms of being vaccinated, how to disclose, and to who;
- Reasonable timeframe for becoming vaccinated;
- Accommodations for medical and religious reasons (and the associated process);
- Consequences for not complying (e.g., starting with unpaid leave, which may eventually lead to termination of employment, but not automatic discipline or termination).
Whereas automatic termination may lead to claims of unfair/wrongful dismissal, as found in a recent case, when handled in line with a clear policy/procedure, unpaid leaves of absence (which may result in termination over time) for not complying with a mandatory vaccine policy are not considered constructive dismissal. In this case (as noted by Mathews Dinsdale), the court focused on the effectiveness of the vaccine to minimize COVID’s dangerous outcomes, that organizations have an obligation to protect the health and safety of employees, and that the employment agreement explicitly states that employees must comply with workplace policies.
It is important to note, however, that this particular case (which stemmed back to December 2021) also specifically noted the “extraordinary circumstances of the pandemic in the winter of 2021 and January 2022” – circumstances which are not the same today. As Mathews Dinsdale points out, whether a mandatory vaccine policy is reasonable today depends on the specific circumstances and nature of the organization and industry, in addition to the policy itself.
In a similar case (as reported by Fasken) specifically focused on a mandatory masking policy (as opposed to mandatory vaccines), the court found that putting employees on unpaid leave for not complying with the policy would not necessarily be constructive dismissal. Again, this decision needs to be considered in line with individual workplace circumstances and keeping in mind that the case was initiated in late 2020.
To keep things interesting, a case against BC Hydro’s mandatory vaccine policy, as noted by Pulver, Crawford & Munroe LLP, serves as a reminder that nothing is straightforward in this matter. In this case, the arbitrator found that, while it was reasonable to require proof of vaccine and place employees on unpaid leave, threatening discipline or termination was not. The point here is that BC Hydro met its obligations to keep workers safe and healthy by not having unvaccinated employees on the worksite – and given the changing course of the pandemic, it would be reasonable to bring employees back to work when safe to do so.
How do boosters figure into mandatory vaccine policies?
Many mandatory vaccine policies require that employees have at least two doses of the COVID-19 vaccine. Indeed, recent case law addresses “two dose efficacy” specifically. However, as we note above, as these cases stemmed from actions in 2020 and 2021 – prior to the Omicron variant taking center stage and the release of the bivalent vaccine – the question of whether boosters should be required comes into play. Earlier this year, a decision by the Ontario Labour Board indicated that it was reasonable for employers to expect that employees be “fully vaccinated” – including boosters.
That said, as in all circumstances, the policy must be specific and reasonable to each workplace where there may be a “significant operational risk.” Additionally, this decision came prior to the Canadian and BC government no longer requiring vaccines. As Stikeman Elliott LLP lawyer, Kris Noonan, states, “policies introduced at the height of the pandemic may be at greater risk of being found to be unreasonable as COVID-19 cases trend downwards and government support for mandatory vaccination programs wane.”
Which organizations still have mandatory vaccinations in place?
While there may be several private organizations which continue to have mandatory vaccination policies (MVPs), within the BC provincial and federal public sectors, currently only health care continues to require MVPs.
On September 15th of this year, the BC government issued a press release indicating that health care system workers must still be vaccinated with at least two doses. This includes hospital, community, and residential care workers, but no longer applies to health professionals such as dentists, massage therapists, naturopathic doctors, and opticians.
Accordingly, despite being federally regulated, the federal government extended First Nations the flexibility to determine the best way forward for their communities. As such, many First Nations put in place MVPs. Some, particularly those in remote locations with community members at a higher risk, continue to have MVPs; however, others are removing them.
Other provincial and federal workers who no longer require vaccinations include:
- Federally regulated transportation sector workers – MVP suspended on June 20, 2022
- Core Public Administration (CPA) workers, including RCMP – MVP suspended on June 20, 2022
- BC Public Service – MVP suspended April 8, 2022
While private organizations can still make individual decisions about MVPs in their workplaces, government, public service, and health care sectors can be looked upon to provide good guidance.
What are the take-aways for employers?
Recent caselaw indicates that mandatory vaccination policies are still acceptable in certain organizations. That said, and as outlined previously, MVPs should always be considered in light of the specific workplace factors, COVID-19’s current trajectory, and an understanding that one shape/size of policy doesn’t fit all.
Let Jouta’s HR Consultants help you navigate whether a mandatory vaccination policy makes sense for your organization.