Guidelines for developing a workplace vaccination policy
As with all things pandemic-related, much has evolved on the vaccine front since we last wrote about them in July. Back in the summer, unknowns about COVID’s trajectory, privacy legislation, as well as unclear regulations, were significant barriers to vaccine policies. However, as the spread of COVID-19 continues, employers are increasingly moving forward with policies. This is not to suggest that privacy legislation need not be considered. Rather, it should be considered in the context of workplace circumstances, in addition to the case law that now exists. In recent weeks, there have been several arbitration and human rights tribunal outcomes that lend support for vaccination policies – provided those policies are appropriate for the specific circumstances.
Recent case law outcomes on mandatory vaccination policies
In the first case/policy example, as reported by Fasken, the employer required that employees either be fully vaccinated or have COVID tests twice per week, at their own cost, on their own time. If they chose not to become vaccinated or get tested, they’d be put on unpaid leave, followed by termination after 6 weeks. Upon grievance by the union, the arbitrator’s decision indicated that the employer’s vaccination policy was “reasonable, enforceable, and compliant with Ontario human rights and occupational health and safety laws.”
In the second case/policy example, a different arbitrator, found that the employer’s vaccination policy was a “disproportionate response in the particular circumstances.” More specifically, the policy was found to be unreasonable, given there hadn’t been any COVID outbreaks in the workplace, no specific risks posed by unvaccinated employees, and the prior voluntary policy was effective.
Overall, these cases illustrate – as is the case with most policies – that one size doesn’t fit all and specific circumstances matter. We are also still in the early days of case law.
Despite a lack of conclusive legislation, many organizations – working with their HR Consultants and/or legal counsel – have implemented vaccination policies.
What information should you consider in developing a vaccination policy?
In determining whether your organization should have a vaccination policy, start by clarifying why you need one.
- Do you work in an industry (e.g., health and wellness) or area (e.g., small community) where your employees, customers, or community /public may be at a greater risk of spreading or contracting the virus?
- Do employees work together, in relatively close proximity?
- Are there specific mandates related to your industry or from your clients?
- Is it possible to put in place alternatives to becoming vaccinated (e.g., regular testing, masking/distancing, working from home, transferring to a different department, etc.)?
How can you mitigate some of the risks associated with vaccination policies?
While your level of potential risk depends on the factors noted above, a true mandatory vaccination policy will differ significantly from a vaccinate or test/mask/physical distance policy. Different requirements may apply to current employees returning to the workplace (i.e., those who can/currently work from home) versus new hires who must work onsite. Construction and manufacturing employees, for example, can’t work from home. However, it may be possible to maintain reasonable distancing, with mask wearing and testing, as needed. In contrast, it may be more challenging to require mandatory vaccinations for IT or administrative professionals who’ve been productively working from home for the last 2 years.
In order to help mitigate risks, be sure you:
- Consider and can both reasonably and equitably defend the above factors
- Outline how you will collect/securely keep vaccine status information, and who will have access to it, observing compliance with privacy legislation
- Provide reasonable notice. To provide enough time for employees to get both doses, many organizations are providing 60 days’ notice. This amount of notice may also help mitigate potential constructive dismissal claims, depending on their tenure and termination clauses within their agreements
Regardless of what information your policy contains, we recommend it be written or reviewed by legal counsel and/or your HR consultant/specialist.
Managing vaccination mandates as a service provider or sub-contractor
There have been numerous instances of third parties (i.e., general contractors or major clients), requiring that all contractors or sub-contractors and their personnel be vaccinated. In the cases we’ve seen, the clients are health authorities, federal organizations or crown corporations who have mandated vaccines in their own workplaces, often in line with legislation. Consequently, service providers and sub-contractors have stated that if their own employees are not vaccinated, they may not attend work on any of these clients’ sites.
While, again, circumstances will differ by workplace, a recent case found that employers have an obligation to protect the health and safety of their employees and take all reasonable measures in doing so. In other words, the sub-contractors’ requirement for mandatory vaccination was found reasonable to mitigate the spread of COVID-19.
Where does the BC Human Rights Commission stand on mandatory vaccinations?
Human rights and privacy have consistently been brought up in relation to the matter of mandatory vaccinations. Specifically, some unions and employees have argued that collecting vaccination information goes against their right to privacy under the Charter of Human Rights and Freedoms and their right to physical integrity. However, the BC Human Rights Commissioner recently stated: “the proof-of-vaccination requirement is justified from a human rights perspective and will result in increased protection for those among us who are most vulnerable to the virus.”
Accordingly, an arbitrator found that the “general well-being” of others in the workplace trumps “the inconvenience” to unvaccinated employees of having to disclose whether or not they are vaccinated.
Medical accommodations for not being vaccinated
As contrasted to someone who prefers not to be vaccinated, if an employee cannot get vaccinated due to a legitimate medical reason, as with other medical conditions, employers must accommodate them. The crucial word here is legitimate. We’ve all heard the news stories about physicians writing fake certificates. In line with the BC College of Physicians and Surgeons’ Practice Standards related to medical certificates, statements must be true, objective, supported by medical evidence, and not simply based on patient requests. While the BC Ministry of Health has outlined several circumstances where accommodation would be warranted, these must be physician-diagnosed and supported.
In contrast, as was stated in a case against Dr. Bonnie Henry, “an ideological opposition to or distrust of the vaccine would not be enough.” In other words, one cannot expect that a potential medical issue or risk that isn’t substantiated be reason enough for accommodation.
Religious accommodations for not being vaccinated
Religious accommodation is not as straightforward as medical accommodation, as there is no similarly accepted form of certificate. While there are certainly religions who oppose vaccinations, it can be more challenging to address their validity as compared to a preference or personal belief. Some organizations are referring to a list that the Vanderbilt University published relating to religions who are/are not opposed to vaccinations. Accordingly, some are requiring that the employee provide a written affidavit stating that that they legitimately cannot be vaccinated due to religion. This is challenging and sensitive ground and we recommend involving legal counsel in these decisions.
In summary – should your organization have a mandatory vaccination policy?
Based on the current state of case law, arbitration decisions, occupational health and safety legislation, and human rights tribunal statements, within BC, Alberta and Ontario, mandatory vaccination policies have been found to be generally acceptable. That said, and as we outlined previously, vaccination policies must be considered in light of your specific workplace factors and an understanding that one size doesn’t fit all.
Jouta can help you navigate the complexities of vaccination policies for your workplace.