Vaccines and Workplace Policies - How Far Can Employers Go?

All Canadian jurisdictions have Occupational Health and Safety legislation that requires employers to operate safe workplaces. This includes taking reasonable steps to prevent the spread of COVID-19 in the workplace.

 

However, there are limits to the steps employers can take to prevent the spread of COVID-19 in the workplace, and legislators have not provided employers with many new rules, regulations or recommendations to guide them when considering, for example, whether employers can ask an employee, or an employment candidate, for vaccine status information, or whether they can mandate COVID-19 vaccines as a term of employment.

 

Until legislators provide further guidance, employers will need to remain adaptable when making COVID-19 related rules. In the meantime, pandemic-related case law precedents are slowly taking shape, and existing rules relating to Privacy, Human Rights, and labour and employment laws provide some guidance.

 

The determination of what kinds of policies an employer may develop and enforce is highly fact dependent and we recommend seeking legal advice to ensure those policies will withstand scrutiny. What follows are general considerations for employers when developing COVID-19-related workplace policies.

 

 

Legislation and common law precedents set limits on information employers may collect, use, and disclose.

 

In May this year, the Office of the Information and Privacy Commission of Alberta (OIPC) issued a joint statement with other provincial Privacy Commissioners. This joint statement requires employers asking for proof of vaccination to demonstrate that the information:

 

 

OIPC also stated there must be some legal authority for requesting a proof of vaccination, the employer should receive the employee’s consent to provide the information, and the employee’s use and disclosure of the information collected should be reasonably limited to meet the purpose of collection.

 

OIPC also notes there is insufficient evidence so far that proves vaccines prevent the spread of the virus (as opposed to preventing serious illness for vaccinated individuals). Unless and until the scientific evidence develops, this makes it difficult for most employers to justify the collection of employee vaccine status on that basis alone, when the current health guidance indicates that masking and social distancing may provide an effective form of protection that does not depend on vaccinations. However, employers may be able to justify the collection of information about vaccination status of employees on other reasonable grounds, such as to identify individuals at greater risk in the event of a workplace outbreak, to more efficiently undertake contact tracing of workplace exposures among employees and to determine if close contacts of identified cases have to self-isolate.

 

As an alternative to required disclosure, employers may invite employees to disclose if they are vaccinated on a voluntary basis.  For example, the employer may have an incentive program with prizes to encourage employees to vaccinate.

 

In all cases, the information received should be used only for the purposes collected, should be kept secure, and should be shared no more broadly and in no more detail than necessary for the purpose for which it was collected.

 

 

Employers may not discriminate against employees or potential employees based on a prohibited ground, unless the discrimination is justified as a bona fide occupational requirement (BFOR). As a result, a vaccination requirement, even as a condition of hire, may infringe on a potential employee’s human rights, if, for example, an employee or potential employee was unable to receive the vaccine due health reasons or religious beliefs. In order to justify the requirement for all employees to be vaccinated, the employer needs to show the vaccination is required to meet a legitimate workplace outcome, the vaccinations are reasonable to achieve that outcome, and the employer could not accommodate to the point of undue hardship any person against whom the employer’s policy discriminates.

 

Employers may meet this stringent test in some circumstances, such as certain health care settings. However, based on currently available information about COVID-19, in most cases the test will be difficult for employers to meet, particularly as alternate measures, such as remote work, distancing, barriers, and masking policies have demonstrated efficacy. Employers who are considering instituting a vaccine requirement in their workplace should be prepared to defend their policy or be able to accommodate those who cannot get vaccinated due to a prohibited ground of discrimination.

 

Another human rights consideration is that employers are prohibited from asking employment candidates questions that may indicate the employer’s preference, either directly or indirectly, for a candidate related to a prohibited ground of discrimination, unless the requirement is based on a BFOR.  This means employers risk violating an employment candidate’s human rights if they ask the candidate on a job application form whether the candidate is vaccinated, as it could show a preference for persons who do not have an associated medical condition that precludes vaccinating, or are part of a religious group who cannot vaccinate because of their beliefs.

 

 

In addition to the above considerations, policy considerations must include whether the workplace is unionized. In non-unionized workplaces, employers will need to ensure the workplace policy complies with an employee’s employment agreement. In unionized workplace, the policy must comply with the applicable collective agreement, and, if the employer drafts an immunization policy, the policy must be reasonably justified. Circumstances in which policies may be reasonably justified vary from case to case depending on the facts.

 

So far, arbitral case law precedents have not endorsed employer policies that make vaccinations mandatory, though there has been approval of policies that support vaccination programs and impose alternative requirements on employees who decline to be vaccinated, either by choice or for health or religious reasons. For example, during flu season, some arbitrators have deemed it reasonable for employers to require health-care workers to be vaccinated or wear masks when working with vulnerable populations, or to be placed on unpaid leaves for the duration of outbreaks at a facility. However, other cases, based on different expert evidence presented and accepted, have held these kinds of vaccine rules to be unreasonable. Existing case law deals primarily with influenza, which, while also potentially deadly, is not the same as COVID-19 in a number of respects. It remains to be seen if the differences with COVID-19 will result in different arbitration rulings on vaccination policies.  For now, in most circumstances, encouraging vaccines, rather than mandating them, will likely be as far as an employer can safely go.

 

 

The pandemic has presented employers with unprecedented challenges. Vaccines offer hope to a return to world with fewer risks and greater mobility. However, until further guidance is released from legislators and adjudicators, employers must be cautious and flexible in the development of post-pandemic policies.

The team at Neuman Thompson remains available and ready to assist you to answer questions related to the development of workplace policies and rules in a post-pandemic world. 

 

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.

 

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