COVID-19 cases are ramping up and vaccines are rolling out. How will it impact the workplace? Here are the answers to 10 questions employers are asking us about employee COVID-19 testing and vaccination.

1. Can an employer require employees to receive a COVID-19 vaccination as a condition for reporting to work?

The answer is a qualified yes: first, this can only happen when the vaccines are widely available to all Canadians; second, the employer must have a proper vaccination policy in place that contains a non-disciplinary and balanced response to, and options and alternatives for, employees who refuse. The COVID-19 vaccination isn’t yet widely available, so courts and arbitrators haven’t yet addressed this question. But based on what we know, they are unlikely to uphold a workplace policy mandating employees obtain a vaccination as a condition for reporting to work if the outcome for the non-compliant employee is disciplinary, including loss of their job. Here’s the legal landscape that will inform what employers can – and can’t – mandate with respect to COVID-19 vaccinations:

Legislation. Legislation is a critical component of the legal landscape. There are three key types of legislation that come into play in the context of mandatory workplace COVID-19 vaccinations:

• Public health laws. The federal government has not made COVID-19 vaccination mandatory for the general public. Individual provinces and territories could make it mandatory in their own provinces, and some provinces and territories do mandate certain vaccination requirements in some settings. For example, New Brunswick requires children to demonstrate proof of vaccination or a medical exemption to attend school. But traditionally, immunization programs are voluntary and consensual because they’re invasive procedures affecting an individual’s health. For example, Newfoundland and Labrador public health laws did authorize the Chief Medical Officer to make vaccines publicly mandatory; that law was recently amended (pre-pandemic) to remove that authority. However, this could change: keep an eye on federal and applicable provincial and territorial public health laws. If they are amended to mandate the COVID-19 vaccination, then it’s more likely a court or arbitrator will uphold a mandatory workplace COVID-19 vaccination policy.
• Occupational health & safety legislation. Though the wording varies slightly in each, federal, provincial, and territorial occupational health and safety (OHS) legislation imposes a general legal obligation on employers to take every reasonable precaution to ensure workers’ health and safety. While OHS legislation can impose specific legal obligations on employers in certain circumstances, the determination of whether mandating COVID-19 vaccination is a reasonable precaution depends on the specific workplace environment and surrounding circumstances.
• Privacy legislation. Canadian privacy legislation relating to the collection, use and disclosure of personal information doesn’t state an employer can – or can’t – require an employee to have a COVID-19 vaccination (or test). But both federal and provincial and territorial privacy legislation presume an individual’s health information is highly sensitive. Further, courts and arbitrators view an employers’ requirement that employees submit to medical tests or procedures as an infringement of employees’ individual privacy rights.

Judicial Balancing. Employers don’t have a lot of guidance from courts or arbitrators to go on just yet. But there are a few decisions in the context of COVID-19 that, along with earlier decisions about influenza and other contagious disease (such as measles) vaccination policies, offer the best indication of how courts and arbitrators will approach the assessment of workplace COVID-19 vaccination policies. At this point, however, these decisions indicate that the law is unsettled. Courts and arbitrators are united in a “balancing of interests” approach to assess the reasonableness of testing and vaccination policies: a weighing of employees’ individual privacy rights against employers’ OHS obligations to ensure workplace safety, and, in the case of COVID-19, the common good in slowing its spread. But so far, it seems courts and arbitrators are divided on where they strike that balance.

• Individual Privacy. Several decisions have struck the balance in the employees’ favour, finding “vaccinate or wear a mask” (VOM) policies unreasonable on the basis that the harm they impose outweighs the potential benefit to employee or (since virtually all such decisions are in the healthcare sector) patient safety. These decisions appear to focus on the lack of scientific evidence about the effectiveness of the preventive measures (vaccinate or mask) on reducing the transmission of influenza, determining the employer couldn’t prove it was reasonable to insist everybody who wants to work in their workplaces must have the vaccine. Examples, both from Ontario, include the 2015 decision in Re Sault Area Hospital and Ontario Hospital Assn (Vaccinate or Mask) and the 2018 decision in Re Michael’s Hospital and ONA.
• Collective Safety. Other decisions have struck the balance in the employers’ favour, deciding an employer is entitled to have a VOM policy – but only as long as it isn’t punitive or disciplinary vis-à-vis employees who choose not to vaccinate or mask, and offers alternatives, such as working from home (where possible), assigning employees to other tasks, allowing them to use vacation or banked time, or permitting a leave of absence without pay. Examples include the 1998 Ontario decision in Trillium Ridge Retirement Home v. S.E.I.U., Local 183, the 2002 Alberta decision in Chinook Health Region v U.N.A, Local 120, the 2013 B.C. decision in Re Health Employers Association of British Columbia and HAS BC (Influenza Control Program Policy), and the 2020 Alberta decision in Re Alberta Health Services and UNA, Local 301 (Hiob-Mayfield) (which is based on pre-COVID outbreak facts). This mirrors the approach of courts in other COVID-19 contexts. For example, in the 2020 L. decision in Taylor v. Newfoundland and Labrador, the court decided COVID-19 travel restrictions were reasonable on the basis the collective good outweighed individual mobility rights. Similarly, in the 2020 Ontario decision in Re Participating Nursing Homes and ONA (Covid-19 Sick Pay), the arbitrator decided the employer was exercising its management rights reasonably and appropriately by preventing employees who may pose a risk from attending the workplace, a nursing home, for the purpose of protecting residents and employees and stopping the spread of COVID-19.

COVID-19 Is Unique. Decisions in other contexts that apply a balancing of interests approach are of some assistance in predicting how courts and arbitrators will handle COVID-19 vaccination questions – but COVID-19 is unique. Courts and arbitrators have acknowledged that COVID-19 is far more contagious and lethal than influenza, and public health authorities are still learning about its symptoms, transmission and long term effects. Furthermore, the COVID-19 vaccine is new, making its long-term effectiveness and protection against disease transmission uncertain. It’s therefore unclear how a court or arbitrator would weigh current scientific evidence in their balancing of interests approach.

2. Can an employer require employees to be tested for COVID-19 as a condition for reporting to work?

Employers might have a little more latitude with mandatory testing than with vaccinations. The federal government and some provincial or territorial governments have mandated COVID testing in certain circumstances. And while the balancing of interests approach also applies to assess the reasonableness of COVID-19 testing policies, at least one arbitrator has acknowledged that the characteristics of COVID-19 distinguish COVID-19 testing from employer drug and alcohol testing policies. In the 2020 Ontario decision in Caressant Care Nursing & Retirement Homes and CLAC (Covid Testing), the arbitrator decided a retirement home’s unilaterally imposed policy requiring all staff be tested for COVID-19 every two weeks is reasonable, noting COVID-19 testing reveals only the employee’s COVID-19 status, testing positive isn’t culpable, and most significantly, COVID’s unique characteristics differentiate the weight to be given to the relative interests in comparison to drug and alcohol testing policies.

3. What kind of circumstances are relevant to assessing whether a mandatory COVID-19 testing or vaccination policy is reasonable?

Whether a court or arbitrator decides a COVID-19 testing or vaccination policy is “reasonable” will be a highly fact-specific analysis. Therefore, a court or arbitrator could consider many circumstances when determining whether a mandatory COVID-19 testing or vaccination requirement is reasonable. Notably, and perhaps not surprisingly, many of the decisions about VOM policies to date are in the healthcare and eldercare sectors. However, the extent and duration of the COVID-19 outbreak, its highly contagious nature, and its lethal potential suggest this issue will arise in other sectors. Five key circumstances relevant to assessing whether a mandatory workplace COVID-19 testing or vaccination policy is reasonable include:

Collective Agreement Language. If your workplace is unionized, the specific language of the applicable collective bargaining agreement. For example, many collective agreements in the healthcare sector include vaccination language.

Nature of Workplace. The nature of the workplace, such as a remote or isolated locale, making access to medical care difficult if there were an outbreak on site, or the ability or inability of employees to work from home.

Vulnerable Populations. The degree of contact your employees have with populations that are particularly vulnerable to COVID-19, such as elderly, medically compromised, or Indigenous peoples.

Employee Proximity. Whether the work environment requires employees to work with others in close proximity or confined spaces, heightening the risk of spread if an employee contracts COVID-19.

Essential Service. Whether your employees are providing a service that the federal or relevant provincial government has deemed to be “essential”.

4. Does the human rights law duty to accommodate apply to a COVID-19 testing and vaccination policy?

Yes. Where an employee is discriminated against based on a characteristic protected by the applicable human rights law, the employer has a legal duty to accommodate the employee: to take steps to offset the discriminatory impact of a workplace rule, policy, requirement or practice by adjusting, revising or eliminating it, to the point of undue hardship. Common examples of protected characteristics engaged in the context of COVID-19 testing and vaccination include physical disability, mental disability, pregnancy (which is included in sex), family status and religion. Employees who request accommodation must demonstrate their membership in the protected group, which could include providing medical or other evidence, and cooperate in the accommodation process.

5. Should I have a COVID-19 testing and vaccination policy and if so, what should I consider when putting one in place?

Yes. A COVID-19 testing and vaccination policy is a key tool to let your employees know your expectations of them and the consequences of their failure to meet those expectations. Since it will take some time to create and implement one, if you don’t have any testing and vaccination policy then you’re wise to start now; if you have one, review it. These key do’s and don’ts will help you develop your COVID-19 testing and vaccination policy:

Implementation. Do follow the basic steps to properly draft and implement your policy. In this context, clear communication of the policy to employees in advance of implementation is crucial. In a unionized environment, if the policy doesn’t form part of the applicable collective agreement and you’re introducing it unilaterally under your management rights authority, ensure it satisfies the “KVP” criteria (named for the arbitration case in which it was first enunciated):

• The policy (or any aspect of it) must not be inconsistent with the collective agreement.
• It must not be unreasonable.
• It must be clear and unequivocal.
• The employer must have brought the policy to the affected employee(s)’ attention before acting on it, putting them on notice of what’s required, that a breach could result in discipline including discharge (if applicable) and if their employment is in jeopardy.
• The employer must consistently enforce the policy.

Not Mandatory. Don’t “mandate” tests or vaccines in the sense that an employee who refuses to test or vaccinate faces disciplinary consequences or dismissal for that refusal.

Off-ramp. Do give all employees an “off ramp”: ensure the policy provides options and alternatives to employees who refuse COVID testing or vaccination. Examples include allowing employees the option to vaccinate or mask (VOM), undergo regular testing (in the case of vaccination refusal), take vacation, or take an unpaid leave of absence and be permitted to return to work once herd immunity can be established.

Non-compliance Consequences. However, do ensure the policy provides that you will discipline employees for non-compliance with the policy generally. You ought not discipline or dismiss an employee for failure to test or vaccinate, but you can still discipline or even dismiss them (following appropriate discipline processes) for breaching the policy.

Customize. Don’t “cut & paste” a policy from another employer: while there are some common elements to vaccination policies, the legal principles and the decisions from which we draw them make it clear the assessment of a policy is highly fact-specific. Instead, customize it to your workplace to maximize the opportunity that, if your policy is challenged, you can demonstrate the thoughtfulness with which you considered the risks of your particular workplace and how the policy you’ve developed reflects them.

Human Rights. Do ensure the policy contemplates human rights considerations and your duty to accommodate to the point of undue hardship.

Evidence-Based. A unique aspect of COVID-19 is that the law and the science are rapidly evolving, and courts and arbitrators recognize there are still a lot of risk and unknowns associated with COVID-19, such as new variant strains. But to the extent there is medical evidence, do undertake medical consultation so you can present the medical evidence on which you relied as part of defending your policy if it’s challenged.

Privacy. Do address the privacy of employees’ personal health information in the policy. Confirm your commitment to maintaining the confidentiality of all employee medical information, including COVID-19 testing and vaccination records, and state how you will secure that information (and ensure you implement that security). The Personal Information Protection and Documents Act (PIPEDA, soon to be replaced by the Consumer Privacy Protection Act, or CPPA) applies to federally regulated employers’ collection, use and disclosure of their employees’ personal information. Federally regulated employers include banks, interprovincial road transportation services, and Crown corporations. Some provinces and territories have similar privacy legislation for provincially-regulated employers. If you’re subject to that legislation, ensure your privacy measures comply with it. Even if you’re not subject to specific privacy legislation about the collection, use and disclosure of your employees’ personal information, you might still want to follow their rules.

Consultation. In a unionized workplace, do consult with unions as the collective agreement requires. An arbitrator could disallow an otherwise valid policy on this basis alone.

Timing. Do keep timing in mind and adjust your policy accordingly: if you’re going to make COVID-19 vaccination a condition for reporting to work, the vaccine must be generally available to all employees. And Canada isn’t there yet.

Resources. Do provide employees with resources about the COVID-19 vaccine; this can help reduce employee uncertainty and promote informed decision-making about receiving the vaccine.

Regular Review. Do review it frequently, more frequently than you might other policies (at least for now) and revise it as and when necessary. Circumstances around COVID-19 are evolving constantly and rapidly and it’s crucial that your policy keep pace and stay current.

6. Can I require employees to provide evidence of COVID-19 vaccination and what evidence should I require them to give?

Yes, you can require employees to provide evidence they received a COVID-19 vaccination, just as you can require them to provide certain other medical evidence. The keys will be the reasonableness and proportionality of the personal information you require employees to provide. In the policy, require they provide a medical note or certificate from a medical practitioner confirming they received the vaccination. In addition, require the note or certificate specify the brand of vaccine they received; this information could be important once more is known about COVID-19 vaccinations, for example, how long the protection will last.

7. If a customer or other employees ask if a particular employee has received a COVID-19 vaccination, can I share that information?

No. A person’s medical information is inherently private and presumptively “sensitive” personal information. You have an obligation to protect the privacy and confidentiality of your employees’ medical records. Information about whether an employee has received a COVID-19 vaccination is similar to information about whether they had an influenza vaccination, or are ill: it’s private and confidential. Share it only with those in your organization on a need to know basis, such as those directly involved in fulfilling your duty to accommodate an employee. Instead, provide the customer or other employees with confirmation that, based on your screening process, the employee in question is cleared to be able to provide the service in accordance with your standards and policies.

8. Can I require new employees to have a COVID-19 vaccination as a condition of an employment offer?

Once the vaccine is widely available to the general public, you likely can, just as employer can require pre-employment drug and alcohol testing and pre-employment medical and criminal record clearances in certain circumstances. However, be clear, in advance, that a COVID-19 vaccination, and proof of it, is a condition of the employment offer and will be part of the onboarding process. The requirement should also be part of your broader vaccination policy to reflect the fact you’ve addressed the need for a vaccination standard associated with your workplace, and not applied it only as part of a new hiring process.

9. Can I offer employees on-site COVID-19 vaccination clinics during working hours?

Yes. Once the COVID-19 vaccination is available, employers are free to offer on-site COVID-19 vaccination clinics at their workplace during working hours – ideally while paying employees – just as many employers offer on-site influenza vaccination clinics during working hours. Doing so could also encourage more employees to be vaccinated by making it more convenient for them.

10. Am I liable if I require employees to receive a COVID-19 vaccination and they suffer an adverse reaction?

No. If an employee receives a COVID-19 vaccination as a condition of employment, it’s likely it would be considered to have arisen from or in the course of employment, and thus subject to workers’ compensation laws. This might lead to a workers’ compensation claim, but workers’ compensation laws bar employees from suing their employers for injuries that arise out of or in the course of their employment.

---

Please contact your McInnes Cooper lawyer or any member of our Labour & Employment Law Team @ McInnes Cooper to discuss this topic or any other legal issue.

---

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2021. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.