With COVID-19 vaccination within reach, many employers want to know if they can require employees and, possibly, customers to be vaccinated. Employers are also uncertain about the information they can collect about vaccination and whether widespread vaccination in the workplace means fewer health and safety protocols such as distancing, masking, disinfecting, etc. Consider these answers:
Q: Can an employer mandate COVID-19 vaccination as a condition of employment?
In most cases, yes, subject to the considerations and risks addressed below.
An employee who is unable to receive the COVID-19 vaccine due to a health condition or religious belief may claim any requirement to be vaccinated is discriminatory under human rights law. In that case, an employer must be able to demonstrate vaccination is a bona fide occupational requirement and accommodate the employee to the point of undue hardship.
Each request for accommodation must be assessed on an individual basis, and might include:
- exempt the employee from the requirement to be vaccinated.
- move the employee to a remote work arrangement or a position or location in the workplace that does not require direct and/or regular contact with co-workers, customers, clients, vulnerable individuals, or the public.
- require the continued use of personal protective equipment (PPE) to mitigate the risk of transmission, even if no longer required by law.
An employer that operates in a province or industry with privacy legislation applicable to employee personal information must ensure collection of vaccination information is done in compliance with that legislation. A vaccination policy should clearly outline why collection of vaccination information is reasonably necessary, the scope of its use and disclosure, and how it will be stored and destroyed.
Subject to the human rights and privacy considerations, an employer can implement a mandatory vaccination policy for its non-unionized employees.
For a newly hired employee, a vaccination requirement should be clearly set out in the offer of employment.
For an existing employee, depending on the nature of the workplace and the employer’s justification to require mandatory vaccination, refusal to be vaccinated may or may not amount to just cause to terminate the employee. If not, the employee may be entitled to pay in lieu of notice and, in some cases, severance pay (under employment standards legislation). Common law notice may also be owed, depending on the terms and conditions of employment.
Accordingly, before implementing a mandatory vaccination policy, an employer should consider how it will respond, and the associated cost – financial and otherwise – if an employee refuses to be vaccinated based on personal choice.
In some circumstances, an employer may try to reduce potential liability by implementing a vaccination policy that provides non-disciplinary alternatives if an employee elects not to be vaccinated. This could include:
- placing an employee on an unpaid leave of absence,
- requiring the continued use of PPE even after it is no longer required by law, or
- another measure to reduce potential COVID-19 transmission in the workplace.
However, depending on the nature of the alternatives provided, an employee may argue the requirements of the policy constitute a constructive dismissal. Whether this is accurate, will depend on the specific facts of each case.
In a unionized workplace, a mandatory vaccination policy may be challenged as a violation of the collective agreement. In that case, an employer will be required to establish the policy is reasonable for health and safety purposes, or other workplace factors. At present, there is no reported case law on the reasonableness of a COVID-19 vaccination policy. However, there are several arbitration decisions in which an employer’s influenza vaccination policy was found to be reasonable. While the respective vaccination policies differed slightly, they shared the following common features:
- they were implemented in the healthcare sector and, in most cases, applied to healthcare workers who provided direct care to vulnerable populations.
- in the event of an outbreak of influenza, an employee was not permitted to work unless vaccinated or the employee had begun an anti-viral prophylaxis regimen (and remained out of the workplace for a specified period of time after beginning the regimen)
- an employee not permitted to work was kept out of the workplace only for as long as the outbreak.
- the policy was non-disciplinary and provided options to an employee who refused to be vaccinated, including take the prophylaxis treatment, take an unpaid leave of absence or accessing vacation credits or banked time to offset the financial impact.
The circumstances surrounding COVID-19 are not identical to that of general influenza. Nevertheless, the influenza decisions offer insight into the factors an arbitrator might consider when assessing whether a vaccination policy is reasonable.
A clear and concise COVID-19 vaccination policy can assist to reduce legal risk and encourage vaccination. At a minimum, a COVID-19 vaccination policy and implementation should:
- state why COVID-19 vaccination is a reasonable requirement (e.g., considering the nature of the work performed, risk to other employees and members of the public, etc.).
- identify what vaccination information will be collected and how it will be used, stored and destroyed.
- outline the steps an employee should take if they require accommodation for any reason.
- clarify if vaccination is required as a condition of employment; if not, identify non-disciplinary alternatives to vaccination if an employee elects not to be vaccinated, including an unpaid leave of absence, continued use of PPE, or other measures to reduce potential transmission.
- provide advance notice of the effective date of the policy. A longer notice period may reduce potential liability if an employee claims the policy requirements constitute a constructive dismissal.
In a unionized workplace, an employer might also consider seeking the union’s input prior to rolling out a policy to minimize the potential for a policy grievance later.
Q: Can an employer collect information about COVID-19 vaccination status from its employees, even if not mandating vaccination?
Requiring an employee to disclose vaccination status as a condition of employment is permissible, subject to the same legal considerations addressed above, with one more factor to consider. If the reason the information is collected is to advertise or promote the business as “fully vaccinated” (for example) an employer must obtain consent from each employee prior to disclosing this information to the public.
Q: Can a business screen its patrons (customers, clients) for vaccination prior to entry into the workplace?
This type of screening is permissible, subject to considerations.
An individual unable to receive the COVID-19 vaccine due to a health condition or religious belief may claim the requirement to be vaccinated constitutes discrimination in the provision of services contrary to human rights law. In that case, a business must be able to demonstrate vaccination is a bona fide requirement considering the nature of the business and accommodate the individual to the point of undue hardship.
Each request for accommodation must be assessed on an individual basis, and include:
- exempt the individual from the requirement to be vaccinated.
- provide service through an alternate means (delivery, curbside pickup, etc.)
- require the use of PPE to mitigate the risk of transmission, even if no longer required by law.
Personal Information Protection and Electronic Documents Act (Canada) applies to the collection of personal information from an individual for commercial purposes. As such, the collection of vaccination information must be done in a manner consistent with the requirements of this legislation. This means the business must:
- obtain informed consent.
- only collect information needed to fulfill a legitimate business objective.
- only use information for the purpose it is collected.
- securely store information to avoid inadvertent disclosure or a data breach.
- safely destroy information after it is no longer required.
If a business does elect to collect information about patron vaccination, it should:
- implement a COVID-19 vaccination screening policy to clearly outline the reasons for collection and how it will use, store and destroy any personal information collected.
- collect as little personal information as possible. For example, ask a patron to verbally confirm vaccination without collecting any identifying information or physical proof of vaccination status.
- train employees on how to provide service to a customer who states they are unable to comply with the requirement for a human-rights related reason.
Q: Is a business permitted to relax its masking, physical distancing and other public health and safety measures if it can confirm all employees have been vaccinated?
The vaccination status of employees within a workplace does not (currently) impact the health and safety requirements mandated by law. They apply regardless.
This information does not constitute legal or other professional advice, nor does accessing this information create a lawyer-client relationship. This article is current as of March 2021 and applies only to Ontario, Canada, or such other laws of Canada as expressly indicated. Information about the law is checked for legal accuracy as at the date the article is prepared but may become outdated as laws or policies change. For clarification contact Sherrard Kuzz LLP.