2020 presented unprecedented challenges for workplaces, requiring employers to be creative and strategic in responding to the significant changes required by the COVID-19 pandemic. The close of 2020 brought with it the approval of two vaccines, with more on the horizon. These vaccines will hopefully assist in putting the pandemic and all the resulting restrictions behind us. For employers and workplaces in particular, the vaccines mean a potential return to normal operations, a return to full capacity and a return to the normal workplace. But that will only happen if workers are vaccinated, or the COVID-19 pandemic resolves itself. For employers that raises a myriad of questions, most significantly, can they require employees to get vaccinated and can they require employees to provide information with respect to whether or not they have been vaccinated?
The roll out of the vaccine in Canada will be determined by government and public health authorities. No individual or organization can demand to be at the front of the queue, nor can they control the timing at which they will be able to access the vaccine. However, once the vaccine is widely available the question of whether you can make it mandatory in the workplace and whether you can seek information from employees about their vaccination status will be at the forefront.
Current research suggests that 1 in 7 Canadians will not get vaccinated against COVID-19. Approximately 50% of Canadians indicate a willingness to get vaccinated as soon as the vaccination is made available to them. This suggests that 50% of Canadians are hesitant to get the vaccination and just under 15% may be unwilling to get the vaccination. This means that most workplaces will have employees who are either hesitant or unwilling to get vaccinated. Without full vaccination there may be continued impairment in workplace operations and resulting impacts on profitability. The relief that many employers may be hoping for with the vaccine may only be possible with complete compliance from the workforce. This leads to the consideration of whether employers can make vaccination mandatory for all employees.
The current research is unclear as to whether vaccinated individuals can spread COVID-19 or not. While it seems clear that a vaccinated individual will be protected from developing COVID-19 or at least serious symptoms of COVID-19, the data remains unclear as to whether they are able to transmit the disease. Until that data is clear, it is unlikely that the Public Health Orders imposing requirements, such as face masks and social distancing, will be lifted. As a result, while vaccination presents a path to a return to normalcy, it is not a clear path, nor is it a short path.
There have been significant changes to workplaces due to the pandemic. From employees working at home, to handling work meetings virtually and reduction in services to accommodate social distancing, changes have been far reaching and extensive. Those changes are not likely to disappear all at once and employers should view those changes as tools in their arsenal for running a business during a pandemic. Those tools do not disappear just because a vaccine has arrived, but rather can continue to be used in conjunction with vaccination to help businesses not just survive but thrive during the pandemic.
Can I make vaccination mandatory in my workplace?
The question of whether an employer can make vaccination mandatory in the workplace is one without an easy answer and one that is without precedent in Canada. The question involves a balancing of interests. On the one hand is the employer’s responsibility to provide a safe workplace. On the other hand, is the individual’s right to bodily integrity, the right to make decisions about their own body. An individual’s bodily integrity is accorded the highest degree of privacy protection and as a result employers generally cannot force vaccination without an employee’s consent or a contractual or statutory right to insist on vaccination. Further, vaccination policies must be connected to the employer’s legitimate business interests.
The balancing of the requirement of the employer to provide a safe workplace with the individual’s right to bodily integrity requires an analysis of the risks in the workplace. Forced vaccination without consent is an intrusive measure which requires an employee to undergo a medical procedure which has the potential to produce an adverse reaction or may be contrary to religious beliefs. Employers should consider whether alternative measures would be adequate to deal with the risks the vaccine is intended to address. In an environment dealing with those who are at risk of significant complications from COVID-19 such as a long-term care facility, there are different considerations from those working in an environment where the risks are more moderate. While a mandatory vaccination policy may be difficult to implement and enforce, employers have the right to restrict access to the workplace and can connect that access to vaccination or the lifting of the public health orders. They can also continue to use the other tools in their arsenal to control the level of risk in the workplace.
For employers in considering whether to implement a mandatory vaccine policy it will be important to consider the particular risks in the specific workplace. Can those risks be moderated through use of masks, social distancing, barriers and other methods that we have become accustomed to? Or is the risk elevated such that those measures are not sufficient to address the risk? Consider the purpose of implementing a mandatory vaccination policy prior to implementation and consider the consequences of the failure to comply. The consequence could range from an employee having to continue to work remotely to termination, although generally the termination would be without cause.
In a non-unionized work environment, the only method to enforce a mandatory vaccine policy is through the power to terminate an employee. Termination for cause for a failure to adhere to a vaccination policy is unlikely to be upheld in all but the most exceptional circumstance, one where the vaccination can be seen as a bona fide occupational requirement due to the unique nature of the work environment. However, a termination without cause for a refusal to adhere to a vaccination policy will not be illegal unless the failure to comply with the policy is for protected grounds such a religious reasons or medical reasons. In those circumstances the termination would be contrary to human rights legislation. In circumstances where the failure to comply with the policy is due to a personal preference or belief, the without cause termination would not be illegal and would simply attract the requirement to provide reasonable notice as with any without cause termination.
Employers should consider whether it is more beneficial to encourage vaccination rather than to implement a mandatory vaccination policy. Education about the benefits of mass vaccination, as well as the risks of vaccination, can be an effective way of encouraging vaccination. Employers should also consider whether incentives such as a return to the workplace, elimination of the requirements for masks and social distancing when Public Health Orders are lifted, or other incentives can assist in encouraging vaccination within the workplace.
Employers should also be prepared to deal with any accommodation requests relating to refusal to be vaccinated and develop strategies for dealing with this. Given the research relating to hesitancy around the vaccination, expect that you will have employees who are either unwilling or unsure about proceeding with vaccination. Have information regarding the efficacy of the vaccinations, the risks of vaccination and the public health benefits of vaccination available to employees. For those employees who are unable to take the vaccination due to health issues, or who are unwilling due to religious or cultural reasons, consider how they will be accommodated. If accommodation includes continuing to work from home, consider implementing a work from home agreement to clarify expectations in terms of how the employee will perform their work and how their performance will be assessed.
Demanding information about vaccination status
Employers also face the question of whether they can ask employees whether they have been vaccinated and/or require proof of vaccination. This engages privacy concerns. Asking whether an employee has been vaccinated or requiring them to provide proof of vaccination is a collection of personal information which is governed by privacy legislation. Privacy legislation again balances the health and safety of workers against the employee’s right to privacy. Creating a clear policy regarding collection of information about vaccination is a necessity. That policy should consider at the forefront whether the implementation of a vaccine verification program is integral to providing a safe workplace and why. Is the purpose of the program to keep the workplace itself safe or is it to prevent transmission? The policy should include what information will be collected, where that information will be stored, who it will be shared with and when it will be destroyed. Employers should consider whether verbal confirmation of vaccination is sufficient or whether documentary proof is necessary. If documentary proof is necessary employers need to decide whether viewing of the document is sufficient or whether a copy of the proof will be kept on the employee’s file.
Regardless of the specifics of the policy, employers should ensure that they collect only the information necessary to achieve the purpose of the implementation of the program. The vaccination verification information should only be shared with individuals who need to know. Vaccination information should be treated the same as any other sensitive health information, with employers ensuring the confidentiality of the information obtained. Finally, employers should ensure that a process is put in place so that information with respect to vaccination status is destroyed when it is no longer needed.
Takeaways for Employers
Careful consideration must be given as to whether to implement a mandatory vaccination policy bearing in mind that regardless of vaccination it is very likely that the Public Health Orders will not be lifted until the data makes clear whether vaccination prevents spread of COVID 19. If a vaccination verification policy is going to be implemented, be mindful of privacy legislation and ensure that only the information that is necessary is collected, that it is shared with only those that require the information and that the information is destroyed as soon as it is no longer needed. A clear policy for either is a necessity.