Mandatory Vaccinations: Key Vaccination Policy Considerations

Employers continue to debate whether to institute mandatory vaccination policies for their workforces. As we’ve explored in earlier distributions, the considerations and risks of implementing such policies are entirely dependent on the business, type of employee, and whether the workplace is unionized.
In the past few weeks, more and more employers have started announcing proof of vaccination policies in the workplace. This rise in vaccination policies coincides with greater vaccine uptake, a greater strain on the health care system due to increased COVID-19 cases, and the introduction of additional COVID-19 regulations by the Province.
On September 15, the Government of Alberta introduced a new set of restrictions for the province. It also introduced a restrictions exemption program allowing businesses to forego the new restrictions if they implement a proof of vaccination/testing policy for customers. In light of these announcements, employers seem encouraged to develop and institute their own mandatory vaccination policies for employees.
This article addresses some of the most common questions our firm has received over the last few weeks, in an effort to provide some clarity and guidance to employers considering implementing their own policy. Of course, the following guidance is intended to be general in nature and is only applicable as of the date of this communication, as this area of the law is constantly evolving. We would highly recommend any employers considering implementing vaccination policies to contact one of our lawyers.

What Effect does the Province’s Restriction Exemptions Program (REP) have on Employees?

While the REP is an encouraging development, the program expressly does not affect employees. That means that while businesses are given the authority to implement proof of vaccination for customers, there has been no new legal authority for employers to implement the same for their employees. However, this shift in Government mandate does represent a cultural shift in Alberta. The announcements undoubtedly provide more momentum and encouragement to employers considering mandatory vaccination policies for employees. 

Vaccinate or What?

Mandatory vaccination policies are more likely to be justified if the employer provides an alternative to full immunization. The question then becomes what is that alternative?
The Government of Alberta identified one common alternative, which is the testing requirement. Under this type of policy, an employee would either have to present proof of vaccination or provide proof of a negative COVID test either daily, weekly, or at some other interval. An employer could also consider retaining flexibility in a policy to adjust the testing interval to respond to changes in the prevalence of COVID in the community or outbreaks at particular work locations.
Other common alternatives to full proof of vaccination include requiring employees who are not fully vaccinated to work from home, where feasible. An employer can also require employees who are not fully vaccinated to adhere to stricter COVID protocols such as masking, physical barriers, daily screening, etc.
A more aggressive approach adopted by some employers is to require proof of vaccination failing which the employee is placed on an unpaid leave of absence until they are fully immunized. The most aggressive approach is to make vaccination a condition of employment which if not met could result in termination.
An employer who takes a more aggressive approach should ensure that its workplace context justifies the requirements of mandatory vaccination; for example, based on the vulnerability of its clients/customers, the vulnerability of the workforce, or because of operational considerations that put its employees at a higher risk of infection.
For new hires, an employer policy imposing mandatory vaccination as a term and condition of employment is likely more defensible, subject to accommodating human rights grounds and subject to any collective agreement language limiting an employer’s ability to adopt new qualifications for bargaining unit positions.
Regardless of how assertive an approach an employer chooses to adopt with respect to requiring staff to be vaccinated, exceptions based on human rights grounds (medical conditions or religious beliefs that preclude an employee from receiving a vaccination) should be provided for in the policy.  
Any employer should carefully consider the question of what the alternative, if any, is to proof of vaccination. It is best that employers discuss this key issue with legal counsel.
Another important step in the implementation of mandatory vaccination policies, which may not form part of the policy at all, is to actively educate the workforce about the efficacy of vaccines and help propagate the benefits of vaccines to the employees. This can be facilitated through seminars, education materials, discussing the benefits during toolbox talks, identifying it as an issue for an OHS committee or other similar approaches to educating employees. An employer should consider implementing all the tools at its disposal, both carrots and sticks, in order to raise the rate of vaccination. 

Mandatory Vaccine or Testing: Who Pays for the Test?

Many employers who are introducing mandatory vaccination policies have in place a system that requires either proof of vaccination or proof of a negative test (whether PCR or antigen screening). However, the issue has become “who pays for the testing” if an employee cannot present proof of vaccination.
The issue, like many of the vaccination issues, is largely dependent on the workforce. For larger employers, it may be too expensive to cover the testing costs if a large proportion of the workforce is not fully vaccinated. However, passing the testing cost onto the employee presents some challenges.
For employees who work part-time or who earn a lower wage rate, the cost of even the cheaper antigen screening tests, can represent a significant portion of their wages. An antigen screening test costs approximately $40 per test which means some employees may have to spend upwards of $80 a week to meet the policy requirements. For this group of employees, there is a higher likelihood of a constructive dismissal claim, since their income has been significantly impacted, perhaps making their continued employment unviable. In these cases, especially where it is only a small proportion of the workforce that remains unvaccinated, an employer may want to consider paying for the cost of the test themselves to reduce the risk of a constructive dismissal claim.
For employees with a higher income, these costs become more manageable, and it is likely that an employer may be able to justifiably pass these costs onto the employees. This is an issue that should be addressed in any vaccination policy that the employer seeks to implement.
If an employer will be paying for the cost of the tests, it may apply to receive free rapid test kits through the Province’s Rapid Testing Program ( where eligible.

The Sincerity of Religious Objections to Vaccination

Another issue that has arisen is with respect to employees who submit a request for an exemption from the policy based on religious grounds. Employers are responsible to accommodate employees who hold sincerely held religious beliefs. However, in some cases there may be doubt as to whether the religious objection is sincerely held. What should an employer do where such doubt exists?
Additionally, there are some organizations that are acting as an anti-vax agent, purportedly representing themselves as a religious organization and providing people, for a charge, a letter objecting to vaccinations.
The best advice is to treat these cases with caution and implement an individualized approach. If the employer doubts the sincerity of a religious objection on valid grounds, there are some strategies to test the sincerity of those beliefs.
Employers may meet with the employee and ask reasonable questions about the reason for the objection. If this interview process reveals that the objection is not based on religious reasons, but is in fact politically motivated or based on demonstrative falsehoods, an employer may be able to deny the accommodation request.
However, we do recommend caution with this approach. The Supreme Court of Canada has in the past stated that “an inquiry into the mandatory nature of an alleged religious practice is not only inappropriate, it is plagued with difficulties.” After all, individuals are entitled to personal interpretations of their faith. The best advice is to retain legal counsel to help navigate through these sorts of inquiries. 

Effective Dates

One of the most important policy considerations for employers contemplating a mandatory vaccination policy is providing an effective date for that policy. An employer must provide adequate notice for individuals to be in compliance with the policy. There are two options for an employer.
First, an employer can indicate that all individuals covered under a policy must be fully vaccinated by a future date. However, because of the time needed to get fully vaccinated, six weeks appears to be the bare minimum amount of notice an employee would need to become fully vaccinated.
Second, an employer could do a two-step approach, by requiring partial vaccination by a certain date, and full vaccination within no sooner than 6 weeks after the first date. This would allow the policy to be effective sooner, though would require more administrative work in order for employees to submit proof of vaccination twice. Depending on the size of the workforce, this may not be feasible. 

Privacy Considerations

One of the most significant roadblocks in implementing a mandatory vaccination policy continues to be the scant guidance on privacy considerations whether from government or the privacy commissions. Questions have been raised, but not answered, about whether employers can require employees to disclose their vaccination status at all. However, given the recent rapid pace at which employers and governments across the country are implementing vaccination requirements, the practical risks of a successful privacy complaint, if an employer is reasonable about its collection, use and storage, appears to be low.
That said, unionized employers should be cautious about any policies that impact privacy rights of union members. Unions have in the past fought aggressively to prevent employees from being required to disclose medical information. Employers would be well served to consult their bargaining units and come to a reasonable compromise on the issue of disclosure.
In instituting a policy, employers should limit the collection, storage, and disclosure of information to the extent required to enforce the policy. If visual confirmation of vaccination status is logistically feasible, that is the safest approach.
However, any policy should clearly address the reason for the collection/storage of any personal information gathered, outline how it will be stored, who is responsible for collecting/storing the information, and who employees can contact for further questions.
Measures such as these will increase the likelihood that a policy will withstand scrutiny from a privacy commissioner, arbitrator, or court. 
Disclaimer: This summary update of legislation changes is provided as an information service. Legislation is subject to changes, and this information is not provided as legal opinion or advice. If you have any questions on how to interpret and apply the new laws, please contact the team at Neuman Thompson.
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The information in this update is intended as general information and should not be relied on as legal advice.