The approval and graduated access to COVID-19 vaccines may have marked the beginning of the end of the pandemic and the prospect of a return to a more normal life but it has also raised a number of questions for employers about the impact of these vaccinations on your workplace.
In this guide, we have outlined a quick overview of the vaccination requirements in Canada followed by a FAQ’s section on the most common questions we anticipate employers will be curious to know about the vaccine. However, there are two caveats to responses in this guide:
Because of the unprecedented global funding and collaboration, more than 150 vaccine candidates are being researched around the world at this time. The Government of Canada has approved three until now: the Pfizer vaccine, Moderna vaccine, and AstraZeneca vaccine. Widespread vaccination is expected to take some time and unfold over the course of 2021
Canada does not legally require its citizens to take vaccines. Until widespread vaccination is complete, public health measures (e.g., social distancing, masks/face coverings, etc.) will continue to be important to prevent the spread of COVID-19.
Will COVID-19 vaccines be free?
As more vaccines are made and distributed, public health authorities expect to be able to offer free vaccination to every Canadian who wants one. Since we live in a global community,
Government of Canada is committed to making sure low and middle-income economies around the world have access to safe and effective COVID-19 vaccine(s).
Are the COVID-19 approved vaccines safe?
The medical and scientific community has concluded that the COVID-19 vaccines are safe because of the track record of Canada vaccine approval and safety monitoring system. While it’s true that normally vaccines take an average of 10 years to approve, this time all three phases were done at the same time with the help of volunteers and sufficient funding.
What should an employer consider when determining whether to mandate or encourage COVID-19 vaccinations?
First, employers should ensure they are monitoring and adhering to federal, provincial laws as well as guidance from public health agencies on issues relating to vaccinations and the workplace. This information will guide employers as they look to determine what they may and may not do when it comes to addressing the vaccination of their employees.
Further, the nature of the employer’s business or industry may determine whether a vaccine mandate is appropriate. For example, employers in the health care or childcare fields may determine that a vaccination mandate is necessary given the increased chance of exposure to COVID-19. In addition, employers should look to whether employees have complied with COVID-related health and safety measures in the past. If there is a history of noncompliance, that may be an indicator of how employees will react to a workplace policy requiring vaccinations. For example, if an employee resisted (and continues to resist) a face-covering requirement, they may likely object to a workplace policy that requires them to be vaccinated against COVID-19. Employees may object to a vaccine for several reasons, such as concerns over shortened research and development time or their own personal, social or political beliefs.
Unionized employers would also need to determine whether their collective bargaining agreement has a clause that addresses vaccination requirements. If there is no provision clearly establishing the right of management to unilaterally require vaccinations or set policy in that area, a unionized employer may be required under the Labor Relations Act or by the terms of their bargaining agreement to negotiate with the union before issuing a policy.
Must an employee take the vaccine if the employer requests it?
No. An employee may not be compelled to take a vaccine. Making an employee take a vaccine:
Employer mandatory vaccination policies engage employee human rights, privacy, and in unionized workplaces, collective agreement interests. These must be balanced against the employer and public interest in mandatory vaccination and considered in light of other measures available to prevent the spread of COVID-19 and fulfill workplace health and safety obligations.
Employers have received limited guidance from government and regulators, but we are not completely without precedent. There is existing case law – mainly from unionized health and long-term care workplaces – addressing the mandatory vaccination of workers. In many but not all cases, mandatory vaccinations policies have been struck down by arbitrators. Some of these cases were decided in the context of flu breakouts at health or long-term care facilities, but none of these cases were decided in a global pandemic.
In current circumstances, for many employers, it may be difficult to defend a mandatory vaccination policy that is subject to legal challenge. This may change depending on the workplace, as the pandemic and immunization unfolds, and as we learn more about the vaccine.
Must employees report to the employer on whether they have taken the vaccine?
No. Most employers likely will not be able to compel employees to disclose personal medical information such as whether they have taken the vaccine.
Can an employer dismiss for cause an employee who refuses to take the vaccine or to disclose whether they have taken the vaccine?
Likely not, and certainly not until such time as sufficient quantities of the vaccine are readily available and the employee has been given a reasonable opportunity to be vaccinated.
Other than dismissal, what options does an employer have with respect to an employee who refuses a vaccine?
An employer’s options depend mainly on the employer’s workplace but may also depend on why the employee refuses the vaccine. Employers will have an obligation to ensure a safe work environment under their applicable OHS regime. This may mean that an employer may respond to an employee who refuses to be vaccinated by directing that employee:
If vaccinations are mandated, what should be included in your COVID-19 vaccination policy?
It is highly unlikely that mandatory vaccination policies will even be able to be effected until early fall of 2021, mandatory will work in some circumstances as long as human rights & privacy issues are effectively managed and balanced with worker safety.
But for when they do, employers should consider providing insight regarding their reasoning, e.g., they are following public health guidance and/or striving to protect employees and customers against COVID-19. This may help alleviate employee concerns and questions.
The policies should also specify who is covered under the policy, e.g., all employees. Importantly, a vaccination policy that requires employees to get vaccinated must include a process for submitting requests for exemptions/reasonable accommodations based on a disability or a sincerely held religious belief, and the fact that medical information submitted will be kept confidential in accordance with public health.
Employers that choose to have employees submit proof of vaccination should address the type of proof required (e.g., date and time but not medical or genetic information) and where the proof should be submitted. The consequences for refusing to get vaccinated, e.g., exclusion from the workplace, should also be addressed in the policy. Everything mentioned in the policy must be in accordance to published laws and your company’s circumstances.
We will monitor COVID-19 vaccine developments and issue further updates as they become available.