Health & Safety
Guidance on COVID-19 vaccine policies for employees
By Norm Keith
Few individuals with lawful grounds to refuse vaccination in employment law context
By Norm Keith
This column was originally published by OHS Canada.
At the time of writing there have been over 91,000,000 reported cases of COVID-19 around the world and over 1,900,000 deaths, according to the World Health Organization.
Health Canada recently approved two COVID-19 vaccines that were developed with unprecedented speed. The Canadian Medical Association (CMA) recommends that all Canadians get vaccinated, unless they fall within one of several exemptions.
As more vaccines become available and approved by Health Canada, more Canadian residents and workers will become eligible to get an approved vaccine.
Further, employers are starting to ask whether they can require employees to provide proof of vaccination before or as a condition of return to the workplace.
The Canadian government has estimated that it will take at least until Sept. 2021 for all Canadians to be eligible to receive the COVID-19 vaccine.
Protection from infection
The purpose of COVID-19 vaccines is to protect individuals from becoming infected with the virus and preventing its spread.
The World Health Organization (WHO) has publicly stated that achieving population (so called “herd”) immunity is critical in order to protect vulnerable groups who cannot get vaccinated for legitimate medical reasons.
To achieve population immunity a large percentage of the population must be vaccinated against COVID-19. One estimate is that a community, be it a country, province, municipality or workplace must be above an 80 per cent vaccination rate.
Employers are understandably concerned that employees who are not vaccinated and return to the workplace may infect co-workers, patients, customers, clients, suppliers, distributors and third-party contractors (patrons).
This creates a challenge for employers regarding three questions:
- Can employers require employees to provide proof of vaccination before workers return to the workplace?
- If the answer to 1 is yes, are there any human rights or privacy exemptions, restrictions and limitations?
- If the answer to 1 is no, is it still worthwhile to implement a COVID-19 vaccine safety policy?
Can governments make vaccines mandatory?
Federal legislation has been passed in several areas under the federal jurisdiction mandating vaccination of Canadian residents and in some specific circumstances, workers.
For example, federal legislation requires vaccination of workers engaged in the manufacturing of vaccines, under the Food and Drug Regulations.
Provinces that have broader constitutional authority for public and workplace safety than the federal government have also exercised legislative authority to require vaccination of specific categories of workers.
All provinces have the legislative authority to order mandatory vaccines at the direction of government officials, typically the chief medical officer of health of the province.
Employer obligations under OH&S laws
Every jurisdiction in Canada has its own occupational health and safety (OH&S) law. OH&S laws consist of statutes, regulations, codes and related jurisprudence.
No Canadian jurisdiction has passed a specific OH&S law to protect workers from the COVID-19 infectious disease in Canada.
The range of jurisdictional reaction is quite inconsistent and remarkable — where some provinces have provided detailed guidance for employers and other workplace parties on how to protect workers, patients and patrons from exposure to the virus in the workplace, other jurisdictions have simply relied upon public health guidance and industry safety associations to recommend “best practices.”
Workplace stakeholders have been directed by government OH&S regulators to the “general duty clauses” in OH&S legislation that do not specifically address steps for employers to take to protect workers.
The relevant Ontario general duty clause for employers states: “employers shall take all reasonable precautions in the circumstances for the protection of workers.”
However, there is no clear direction given by the MLTSD on how to apply the general duty clause in the context of the pandemic.
Ontario workplace sector-specific safety associations have developed industry guidance that always begins with a strong disclaimer that such guidance is not legal advice. None of these guidance documents address questions regarding vaccines.
OH&S law does not provide a direct answer to the question of whether an employer can impose a mandatory proof of vaccine requirement on workers who return to the workplace — it highlights that the analysis must go beyond simply achieving best practices and is framed by an overarching positive legal duty to ensure worker safety.
Vaccinations, human rights and privacy laws
Human rights and privacy laws are often referenced in the discussion of employer vaccine policies.
Human rights and privacy laws must be understood and applied in a manner that strikes the correct balance between OH&S laws and employees right to be free from a hazard in the workplace, such as COVID-19 infection and human rights and personal privacy issues.
First, human rights laws might be engaged when a worker’s objection to being vaccinated is based on the ground of a disability that causes an adverse health reaction to vaccinations, including one of the COVID-19 vaccines.
In rare instances, according to scientific medical literature and experience, individuals may have mild to serious allergic reactions to vaccines. Second, human rights laws prohibiting discrimination of the grounds of religious beliefs may be engaged when a worker’s sincerely held religious belief is the basis for the refusal to be vaccinated.
An employer’s vaccination policy is very likely to be determined to be a bona fide occupational requirement if challenged to a human rights tribunal or court.
Such a policy is clearly for the purpose of the health and safety of workers and their patients and patrons. The interpretation of this exception to human rights laws may require a balancing of interests.
If an employer promulgates a COVID-19 vaccine policy that requires proof of vaccination of all employees, the policy will have to provide for accommodation of employees who fit within one of the two above-mentioned exemptions.
Vaccine policies and labour relations
Workers who are represented by a union and have the terms and conditions of employment governed by a collective agreement may negotiate the terms and conditions of a mutually acceptable vaccine policy. This is the optimal approach to take in developing a vaccine policy in a unionized workplace.
Unions and their members have challenged mandatory vaccination policies in previous health outbreaks and pandemics. If there is no specific provision in the collective agreement authorizing management to require mandatory proof of vaccination, and if an agreement cannot be reached, then employers may attempt to rely upon the management rights clause to unilaterally implement a mandatory rule governing the terms and conditions of the workers’ employment under the collective agreement.
Management Rights clauses in collective agreements have been interpreted by arbitrators, and affirmed by courts, to require compliance with the KVP rules.
The KVP arbitral test to establish and enforce a rule pursuant to the management rights clause of a collective agreement was endorsed by the Supreme Court in the Irving Pulp & Paper case:
“34. A rule unilaterally introduced by the company, and not subsequently agreed to by the union, must satisfy the following requisites: 1. It must not be inconsistent with the collective agreement. 2. It must not be unreasonable. 3. It must be clear and unequivocal. 4. It must be brought to the attention of the employee affected before the company can act on it. 5. The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge. 6. Such rule should have been consistently enforced by the company from the time it was introduced.”
Therefore, in reviewing the health and safety benefits of an employer policy of mandatory proof of vaccination, the severity of a COVID-19 infection and the high efficacy of the two vaccines approved by Health Canada would rationally support an employer passing a reasonable rule pursuant to a management rights clause of a collective agreement to protect workers health and safety, as well as patients and patrons of any particular workplace or business.
Employer policies and the COVID-19 vaccine
The above review of the law supports a general conclusion that there is legal authority of an employer to develop a policy of mandatory proof of COVID-19 vaccination, with some limited exceptions based on human rights law.
Given that the vaccination and accompanying medical questioning is performed by a health-care professional and not the employer, a mandatory policy cannot be said to involve a medical examination or medical procedure conducted by the employer.
This may alleviate many of the health care privacy concerns of employees. Further protection of the information of a worker’s vaccination status can and should be managed by the terms in an employer’s COVID-19 vaccination policy.
To summarize, no Canadian public or occupational health and safety law, labour or employment law, or human rights and privacy law has directly addressed the three questions that employers are asking.
There is legal authority, reviewed in this article to generally support answering the questions, “yes,” ”yes” and “definitely yes.”
We recommend that every employer consult with an employment lawyer, with occupational health and expertise before implementing any type of COVID-19 vaccine safety policy.
Although there may be some anticipated resistance by individuals often self-described as “anti-vaxxers,” there are few individuals with lawful grounds to refuse vaccination in the employment law context.
With COVID-19 killing so many Canadians, the social-economic effects of the pandemic being so devastating, and population immunity only achieved at high vaccination levels, there are compelling public and occupational health and safety rationale for ensuring that as many workers receive the vaccine as possible.
The health and safety of all Canadians, especially the elderly and most vulnerable, depends on it.
Norm Keith is a senior partner with Fasken in Toronto. He was assisted by articling students Jeff Adams and Jacob Wagner, and OH&S consultants Cathy Chandler and Carla Oliver in the preparation of this commentary.