To Vax or Not to Vax…

That is the Question…

There is no question that we have seen significant voluntary uptake in vaccinations for Covid-19, but what are the obligations for an employer in this regard for individuals who are not voluntarily being vaccinated and can you reasonably require your employees to be vaccinated? As with many HR issues the best answer is “it depends”.

From an employer’s perspective, there is an obligation, in Ontario, under the Occupational Health and Safety Act (“OHSA”) to take all reasonable precautions to protect the health and safety of their workers. There is no question, from the current best scientific and medical advice, that vaccination is the most effective control against the virus. So, there are those that may try to hang their hat on this requirement to mandate vaccines. However, there are going to be people that for medical, personal, or religious reasons cannot, or are unwilling to, be vaccinated and employers cannot likely rely solely on their obligations under the OHSA to mandate vaccines, with some possible, albeit limited, exceptions. To do so may leave the organization vulnerable to liabilities resulting from potential human rights complaints. It is important to remember there are other health and safety protocols that employers can and should have in place to help mitigate the risks of spread of Covid-19 to those unable or unwilling to be vaccinated that should meet their obligations under the OHSA. Further, we still do not have reliable data on the long-term efficacy of the vaccines so additional health and safety protocols, beyond reliance on herd immunity and vaccines, are likely going to be a requirement regardless for some time.

When it comes to vaccines there is a fine balance that is going to play out, and continue to evolve, between risk, safety, privacy, and human rights. You cannot legally ask your employees about their personal and private medical information, including vaccines, unless you can establish a bona fide business purpose and there is no other less intrusive method to achieve the purpose in question, so this can be a tricky area to navigate, and we recommend seeking legal counsel before asking about personal medical information. However, there is nothing stopping an employee from volunteering this information. Some employers may also become privy to this information, for example, if they are holding a vaccine clinic onsite or if they offer incentives such as paid time off for employees to get their vaccines and paid sick time for a recovery period, if needed.

Exceptions, where certain organizations may be able to mandate vaccines, are likely to evolve based on the nature of the business and relative health and safety risks. Possible exceptions that may emerge will be healthcare and other personal care professionals who are dealing directly with high-risk or vulnerable populations e.g., retirement residences, assisted living, and possibly childcare since vaccines have not yet been approved for those under the age of twelve. We are seeing some organizations in the airline industry who have announced intention to mandate vaccines and some universities have come out to say their students must be fully vaccinated if they wish to live in residence. It will be interesting to see how this area will continue to evolve and it is highly likely this will be an area ultimately tested, with a precedent established, by the courts.

Best practice is to develop a policy that encourages (but does not mandate) vaccines for workers and possibly provides incentives for doing so. In establishing such policies and incentives, however, it is important to be mindful of making any rewards of a nominal value and preferably linked to the vaccination process, e.g., paid time off to be vaccinated. When developing a vaccination policy for your workplace the following are some important considerations:

• Differential treatment of employees based on a ground protected by human rights can create a liability exposure so exceptions enabling participation in an incentive reward may need to be made for those unable to be vaccinated based on a protected ground (this is why it is also best to keep incentives nominal and/or directly linked to the vaccination process such as paid time off to be vaccinated).
• Be mindful that you don’t want to create an environment or workplace culture where being unvaccinated creates a stigma in the workplace that could lead to workplace harassment or bullying. Language should be incorporated that acknowledges choice based on personal and protected grounds and that harassment or bullying in this regard will not be tolerated.
• Collective agreements may require modification and approval to implement such a policy.
• Policies should incorporate a disclaimer so that it is clear the employer is not making any representations about the medical or scientific efficacy or implications of the vaccines and employees are responsible for understanding the personal health implications with respect to their personal choice whether to be vaccinated.
• When individuals excluded from the workplace may be permitted to return and what evidence may be required by those excluded in order to return to the workplace
• Consultation with legal counsel regarding to the collecting and retaining of medical information in regard to any privacy requirements.

Regardless of your employees’ vaccine status, and while we continue to ramp up vaccines, consider the following:

• Continue to follow all guidance issued by Provincial and your local health authorities, e.g., masking, distancing, occupation limits
• Ensure your workplace is adequately ventilated and air filtration systems properly maintained
• Allow workers to continue to work remotely to the greatest extent possible and based on the needs of your organization
• Developing a policy that strongly encourages (but doesn’t mandate) vaccines
• Offer incentives for employees to be vaccinated (be cautious of potential perceived inequities and human rights complaints)

Don’t forget to let your employees know how much you appreciate them and stay safe!