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Workplace vaccine mandates require delicate balance

As soon as a COVID-19 vaccine became a possibility, a debate emerged about whether workplaces could legally mandate it.

Recently, the Government of Canada provided a clear stance on the issue by announcing that vaccinations will be mandatory for all workers in the federal public service by as early as September, and that Crown corporations and other employers in the federally regulated sector are expected to follow suit.

The announcement is part of a clear push to vaccinate as many Canadians as possible as we enter a fourth wave fueled by the COVID-19 Delta variant.

In support of these measures, the federal government has noted that less than one per cent of COVID-19 cases since mid-December 2020 have been among those who were fully protected by the vaccine.

Call to action for federally regulated workplaces

In light of the announcement, all federally regulated workplaces should quickly devise and circulate their vaccination policies, if they have not done so already.

At minimum, those policies should:

• clearly state the vaccination requirement
• outline the administrative process for providing proof of inoculation. It is highly recommended that, to the extent possible, organizations maintain confidentiality and security of those records
• clearly outline the process for requesting accommodation of the vaccination requirement, and the limited circumstances in which such accommodation will be considered.

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Accommodation requests

Canadian human rights legislation requires accommodation up to the point of undue hardship, and the announcement does not change that. Indeed, the announcement specifically notes that accommodation may be required in certain situations.

That said, accommodation requests should only be considered with specific reference to protected grounds under human rights legislation.

General fears of the vaccine in the absence of a medical recommendation, or political distrust, do not warrant accommodation under the circumstances.

With respect to health-related accommodation requests, organizations should request medical evidence.

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Implementation of accommodations

Where an employee’s request is supported by medical advice or another protected ground under the Human Rights Code, accommodation can include work from home if possible, screening measures, or a medical leave of absence.

What an employer is not required to do, however, is to allow accommodated workers free rein to attend at the workplace and endanger others.

Not only will such employers likely run afoul of the impending legislation mandating the vaccine, but they will be in violation of workplace health and safety laws which require organizations to protect other workers and clients.

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When accommodation is not possible

Accommodation has a limit under human rights law. If the nature of the job and workplace is such that the employee’s position has become impossible to perform for the foreseeable future, the organization may be justified in ending the relationship.

Canadian courts have confirmed that employers do not have a general duty to create a new job for an employee, or to keep their old job open for them indefinitely when it is clear they are unable to perform that role.

In these situations, organizations may even be relieved of certain termination entitlements owing to employees.

Terminating the employment relationship for undue hardship — while not impossible — is an incredibly complex legal threshold, requiring careful consideration. Getting it wrong can expose an organization to significant liability and bad press.

Mandatory vaccinations have undoubtedly become a hot-button health and political issue.

The new announcement mandating inoculation is likely to further divide those with differing opinions.

Implementing the policy and responding to vaccination requests will require a delicate balance by employers. A variety of competing interests, rules, and sensitivities must be considered.

John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.