May 19, 2021
Can employers require that employees take the COVID-19 vaccine?
With over 50 per cent of eligible British Columbians having had their first dose of a COVID-19 vaccine, we know employers are wondering whether they can mandate that their employees take the vaccine.
ABLE BC Associate Member and Lawyer Ryan Anderson and his firm (Mathews, Dinsdale & Clarke LLP) offer some guidance.
Workplace Policies Generally
- Each industry and workplace is unique, and this could significantly affect the legality of a given company’s vaccination policy. The current legal environment is also incredibly dynamic. With respect to mandatory vaccination, the government could, on short notice, introduce guidance or legislation that considerably alter this legal analysis.
- In the absence of legislation, an employer cannot force an employee to be vaccinated. However, an employer may be able to implement policies, which require vaccination if an employee wishes to remain employed.
- Any workplace policy, including one that would mandate employees to receive the COVID-19 vaccination, must be reasonably necessary and connected to the workplace.
- For example, a mandatory vaccination policy could be considered reasonably necessary if an employee is employed in the healthcare sector or is required to have frequent close contact with members of the public. However, if the employee is working from home or in an office that has sufficient safety precautions in place, the policy may not be considered reasonably necessary.
- The fact that a mandatory vaccination policy may be justifiable in long-term care homes does not necessarily mean it would be justifiable in liquor service environments.
- Liquor service environments also have a variety of safety precautions in place that have proven to be effective in reducing transmission of the virus, including face masks, physical distancing, barriers, sanitization, and hygiene practices.
- If challenged, the employer will generally bear the onus to justify, on health and safety grounds, that implementing a mandatory vaccination policy is necessary. I.e., the employer will have to explain how the currently available safety precautions are not sufficient to mitigate the risk of transmission. This may be particularly challenging as case numbers drop and the majority of the population becomes vaccinated.
- Given this, employers should not assume that a mandatory vaccination policy is going to be legal. As noted above, it will depend on the nature of the workplace itself, with a particular regard to the level of exposure to individuals who are especially vulnerable or at-risk.
Human Rights Considerations
- Human rights legislation requires that exceptions or accommodations in the implementation of workplace policies be made for those who cannot meet the requirements of a given policy due to certain protected grounds, including religion or disability.
- With respect to imposing a mandatory vaccination policy, employers could expect to see objections from employees with auto-immune or other pre-existing conditions, which prevent them from being able to safely receive the vaccine. Objections based on religious beliefs may also arise and will have to be assessed by the employer.
- Where an employee refuses to follow a policy because of personal concerns about the safety or effectiveness of the vaccine, those concerns do not provide protection under human rights legislation.
- Any mandatory vaccination policy will have to consider the ways in which employee medical information will be collected, use, and/or disclosed. It must also ensure that appropriate safeguards are in place to protect this information.
- At a minimum, a mandatory vaccination policy should consider and expressly state:
- How and why the information is being collected and stored;
- The type of information being collected, stored, and/or used and if so, for what purposes regarding;
- employees who receive vaccination (i.e. proof of vaccinations);
- employees who request or require related accommodations;
- who will the above information be disclosed to and how; and
- if consent is required.
- As an alternative to requiring proof of vaccination, you may request that the employee “certify” that they have been vaccinated. I.e., have the employee promise that they have been vaccinated and rely on the employee’s obligation to deal honestly with their employer.
- A mandatory vaccination policy is an inherently invasive step for an employer to take with respect to its employees. As such, perhaps the most significant decision for employers to consider is whether it is worthwhile to implement a mandatory vaccination policy, as it may be viewed as controversial and lead to discontent amongst employees.
- There may be other less intrusive means to reach the same goals, such as encouraging employees to vaccinate as opposed to outright requiring it, educating employees on vaccination or issuing weekly reminders on vaccination.
The complexity of this matter may cause many employers to stick with a voluntary vaccination policy, or implement no policy at all, and choose instead to informally encourage their staff to get vaccinated.
Nevertheless, some employers in the liquor service industry may prefer to accept the “risks” associated with a mandatory vaccination policy, in favour of a clear and universal approach, particularly in circumstances where they are confident that the vast majority or all of their workforce is likely to be supportive of a mandatory policy.
Based on information currently available, Mathews, Dinsdale & Clark recommend the following to any employer considering implementing policies around mandatory vaccinations:
- Instead of a mandatory vaccination policy, consider instituting a voluntary policy. In some workplaces, employers may find that a voluntary policy will yield nearly identical vaccination rates, without the controversy that might accompany a mandatory policy.
- When an employer is aware that 90-95% of their workforce has voluntarily vaccinated, the employer should carefully consider whether a formal mandatory vaccination policy is the best tool to address those who have not yet become vaccinated. A case-by-case approach designed to encourage cooperation from those not yet vaccinated might be preferable.
- If a mandatory policy is necessary, consider providing employees with a reasonable, non-disciplinary alternative to vaccination. Examples: requiring the employee to wear masks in the workplace (whereas an employee who is vaccinated is no longer required to), taking/continuing additional safety precautions and measures, or allowing non-vaccinated employees to go on an unpaid leave of absence when the risk of workplace transmission is high (i.e., during outbreaks).
- Note: a policy that provides alternatives to a rule will be seen as being far more reasonable than one that provides no alternatives and/or is disciplinary in nature.
- For employees unable to be vaccinated for health reasons, disability, religion, or creed, provide appropriate accommodations. For example, consider:
- requiring mask usage and/or enhanced health and safety measures, including physical distancing, barriers, sanitization and hygiene practices, virtual meetings, etc.
- mandatory regular rapid testing or rapid testing prior to workplace entry
- mandatory temperature checks and COVID-19 health checklists prior to attendance at work
- work-from-home arrangements
- permitting use of vacation
- COVID-19 related leave
- unpaid leave of absence
- Policies should include a provision that confirms human rights legislation will be adhered to and that encourages employees to come forward if they require accommodation.
- The policy should be clear, unequivocal, consistently enforced, and communicated to all affected employees, including the disciplinary measures in case of non-compliance.
- Ensure that the employer gathers and documents relevant information and evidence to support the assessment that the policy is reasonable and necessary in the particular circumstances of the workplace.
- In a unionized setting, ensure that the policy is consistent with all applicable collective agreements and that the implementation is respectful of collectively bargained rights. Employers may also consider involving or working with the Union or employee representatives to facilitate the implementation of a vaccination policy.
- Involve the Occupational Health and Safety Committee, where applicable, in the development of the policy.
- Give adequate thought to the disciplinary measures, if any. For example, what happens if an employee refuses or fails to comply with the policy? Is the employee disciplined or terminated (with or without cause)? Will the employee be taken out of the workplace or be sent home on leave?
- The policy should be consistently enforced. This means that there must be sufficient resources and procedures in place to monitor for compliance and address issues that may arise.
- Ensure that the policy is consistently updated and revisited. The circumstances of the pandemic are constantly in flux and (hopefully) there will be a time when the policy is no longer required, which may mean that it is no longer justified.
At the end of the day…
Ryan Anderson says: “At the end of the day, this question concerns a battle of competing rights. Employers are obligated, by law, to ensure the health, safety, and welfare of the employees in the workplace. However, at the same time, employers must also be mindful of an employee’s privacy rights and be cognizant of the potential human rights implications that might arise as a result of the policy.
A good policy will take all of these factors into account and be flexible enough to address and adapt to these types of concerns, while achieving its intended purpose.”
For more information, please refer to Mathews, Dinsdale & Clark’s nationwide guidance on the issue.
If you have any questions or concerns or would like assistance in drafting a policy for your workplace, we encourage you to contact Ryan: email@example.com or 604-638-2042.