March 22, 2021
by Israel Foulon LLP

Summary

As the Province of Ontario prepares to expand the COVID-19 vaccination rollout, it is important to consider the impact of vaccines in the workplace. To date, the federal government has indicated that COVID-19 vaccination is a “personal choice” and it is not expected that legislation requiring vaccination will be introduced. As a result, employers and business owners have received minimal guidance concerning mandatory vaccinations in the workplace. Prior to implementing mandatory vaccination policies, employers must consider the legal intricacies involved in order to limit their exposure to wrongful dismissal and human rights cases during the COVID-19 pandemic.

Vaccines Approved for Use in Canada

To date, following independent and thorough scientific reviews for safety, efficacy and quality, Health Canada has approved four vaccines for distribution:

• Pfizer-BioNTech – approved on December 9, 2020
• Moderna – approved on December 23, 2020
• Astra Zeneca – approved February 26, 2021
• Janssen (Johnson & Johnson) – approved March 5, 2021

With the exception of Johnson & Johnson, the respective vaccines require two doses to be taken approximately four to six weeks apart (although certain provinces including Ontario have indicated the second dose may be delayed up to four months). The vaccines approved for use in Canada (outlined above) have a purported efficacy rate of up to 95%. Accordingly, the vaccine significantly reduces the risk of experiencing symptoms of the COVID-19 virus.

You can review the Federal Government’s Information Poster on COVID-19 Vaccinations HERE.

The Province of Ontario’s Three Phase Vaccination Plan

The Province of Ontario has committed to a three-stage vaccination plan that targets vulnerable communities, health care workers, and home care patients with chronic conditions first, before, gradually making the vaccine available to the broader public. Based on current projections, the vaccine is expected to be readily available to the general public by late 2021. More recently, the head of Ontario’s vaccine task force has indicated that government has indicated that its goal is to have all eligible individuals receive their first vaccine by June 20, 2021. These timelines are supply-dependent, and employers should take care in considering the availability of vaccines prior to implementing a mandatory vaccination policy in the workplace.

You can review up-to-date vaccination rates in the province of Ontario HERE.

You can review the Province’s full vaccination plan HERE.  

Mandating Vaccinations in the Workplace?

At present, there is not a clear answer to whether employers can mandate vaccines in the workplace. The federal government has indicated that vaccination is a personal choice. However, there are clear examples of mandatory vaccination policies in certain industries. For example, individuals working in long-term care homes, ambulances, and those attending public-school systems are required to get vaccinated for specific lists of diseases, or as directed by public health officials, subject to limited exceptions on religious and medical grounds.

It is important that employers are aware of the risks involved with attempting to mandate a vaccine in the workplace. In the non-unionized context, unilaterally implementing a mandatory vaccination policy may expose the employer to potential claims for constructive dismissal and/or human rights litigation.

If you decide to implement a mandatory vaccination policy, it must a have clearly stated rational objective that is tailored to the nature of your workplace. For example, some employers may have safety concerns due to the difficulties associated with maintaining social distancing in the workplace. In such circumstances, a policy may be found to be reasonable where it is implemented for health and safety concerns and contains exceptions for employees who require religious or medical accommodations. Where an employer implements a mandatory vaccination policy, they must ensure that the policy is broadly enforced and that exceptions are permitted only under narrow circumstances, and in accordance with the employer’s obligations under the Ontario Human Rights Code (“the Code”). Each policy should be tailored to the specific working environment and employers should avoid the use of boiler plate policies.

Whether or not a mandatory vaccination policy will be upheld may depend on many factors, including but not limited to:

• Whether the vaccine is readily available to eligible individuals,
• The specific industry of the workplace,
• Whether the workplace is unionized,
• Whether employees work closely with each other and/or with vulnerable populations,
• Whether the workplace is located in a region that is a COVID-19 hotspot and/or there is limited healthcare capacity,
• Whether or not there have previously been any COVID-19 cases and/or outbreaks,
• Whether or not there are less intrusive methods to effectively reduce the risks associated with COVID-19 (e.g., social distancing, regular COVID-19 testing, temperature checks, work from home arrangements, utilizing personal protective equipment, etc), and
• Whether or not the scientific evidence establishes that vaccination is more effective than other mitigation measures.

Prior to implementing a mandatory vaccination policy, employers may wish to consider providing educational information from reliable sources to encourage employees to voluntarily obtain the COVID-19 vaccine. In other cases where employees may be reluctant to take time off work to obtain their vaccination, consideration should be given to whether employees who are only able to obtain an appointment during work hours are compensated for this time.

Any mandatory vaccination policy must also consider the serious privacy concerns relating to gathering proof of vaccination. Aside from the question of which documents will be considered legitimate proof of immunization, at a minimum, employers should: 1) ensure that vaccination information is stored securely (separately from the employee file) and that access is limited to a need-to-know basis, 2) employees who have access to the information understand they are prohibited from disclosing same, and 3) that no additional information beyond what is strictly necessary is collected. Employers in certain provinces may have additional obligations relating to protection of personal employee information.

In Ontario, the Personal Information Protection and Electronic Documents Act (PIPEDA) permits an employer to collect, use or disclose information only for purposes that a reasonable person would consider appropriate in the circumstances. Depending on the nature of the workplace collection and retention of an individual employee’s COVID-19 vaccination records may be reasonable. Employer’s must obtain their employee’s consent to collect and retain their private medical information. Consent in these circumstances is only valid where the employee understands the nature purposes and consequences of the collection use and disclosure of their medical records.

We strongly recommend that you seek legal advice if you are considering a mandatory vaccination policy or have questions concerning specific accommodation requests.

You can review the Office of the Privacy Commissioner of Canada’s fact sheet on Privacy and COVID-19 HERE.

Infectious Disease Emergency Leave (“IDEL”)

The Ministry of Labour recently revised the Employment Standards Act, 2000 (“ESA”) Guide’s chapter on IDEL. The changes have provided some additional clarity for employers to determine a reasonable course of action where an employee refuses to get vaccinated out of a personal choice that is not protected by human rights legislation.

Under s. 50.1(1.1)(b)(iv) of the ESA, an employee is entitled to a leave of absence without pay if he/she is not performing the duties of his or her position because the “employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease.”

The ESA Guide now specifically provides the example of an employer who is concerned that an unvaccinated employee may expose others in the workplace to COVID-19:

Examples include where the employer:

a. is concerned that employees who have not received the COVID-19 vaccine may expose others in the workplace to COVID-19 and tells them not to come to work until they have been vaccinated.

Accordingly, in circumstances where the vaccine is readily available and there is a reasonable basis to conclude that an unvaccinated employee may put others at risk (which may be industry and workplace specific), an employer may place an employee on an unpaid IDEL if they refuse to get vaccinated because of a personal preference. In such cases, the employee could remain on IDEL indefinitely (assuming the IDEL provisions remain in place) or until they can provide written confirmation that they have received the vaccine or until the health risk of COVID-19 is significantly diminished (for example if “herd immunity” is achieved).

In these circumstances, we recommend that employers exercise caution and explore other alternatives prior to placing an employee on IDEL. Employers may run into trouble where an employee can readily work from home, social distancing is easily maintained, personal protective equipment is appropriate, and/or the vaccine is not yet readily available to individuals based on the province’s vaccination plan.  In general, at this time, we are not recommending that a workers’ employment be terminated for failure to vaccinate.

You can review the ESA Guide’s updated chapter on IDEL HERE.

Lessons Learned from Arbitral Decisions in the Unionized Context

Past arbitral decisions in the labour context indicate that the enforceability of a particular vaccination policy will depend on the specific circumstances. If the policy is overly broad, not properly tailored to the character of the work environment nor tied to a clear rational objective specific to the workplace, it is likely unenforceable. To date, there are no reported decisions dealing with the impact of COVID-19 vaccination policies in the workplace. However, there is case law addressing the enforceability of mandatory influenza vaccination policies that provide helpful guidance for employers to consider.

In Trillium Ridge Retirement Home v. S.E.I.U., Local 18, the arbitrator upheld an influenza immunization policy in a nursing home that provided staff with advanced notice that they had a choice of accepting one of three options:

1. They could get vaccinated for seasonal influenza prior to an outbreak;
2. In the event of an outbreak, they could choose to get vaccinated and remain off work without pay for two weeks; or
3. staff could take an ongoing dose of anti-retroviral medication and return to work in approximately forty-eight hours.

If none of the options were taken, staff members were granted time off work without pay until the influenza outbreak was declared over at the facility by public health officials.

The arbitrator upheld the policy despite holding that while the policy was not mandatory, there was a cost for refusal. The evidence before the arbitrator was that the elderly residents whom the staff cared for were particularly vulnerable to the influenza disease. Moreover, the expert witness testimony indicated that the vaccine was 50% to 70% effective in reducing spread and transmission of influenza. The arbitrator held that the evidence bore out that individual staff members may transmit the disease prior to displaying any symptoms. Accordingly, a policy that required staff to self isolate when they displayed symptoms would not effectively reduce transmission of the virus in the workplace.

However, in Sault Area Hospital and Ontario Nurses’ Association (Sault), the union successfully grieved a Vaccinate or Mask (“VOM”) policy in a hospital setting as an arbitrary exercise of management rights. The policy, required that staff members either get vaccinated for seasonal influenza or wear masks for a period of five months each year. The arbitrator held that the policy was put in place to boost vaccination rates in the hospital. Further, based on the evidence, the arbitrator held that it was not sufficiently clear that vaccination reduced mortality rates in acute hospital or surgical settings. The arbitrator determined that the policy as it was not specifically tailored to support the hospital’s legitimate objective of reducing the spread of influenza amongst its patients. Additionally, while drafting and implementing the policy, the hospital failed to consult with infectious prevention experts. Masks were cast as a consequence for failure to vaccinate rather than a legitimate instrument for advancing patient safety.

It is important to consider Sault, based on the context and scientific evidence that existed at the time. A crucial finding in the case was that there was not sufficient evidence to suggest that use of a mask would prevent person to person transmission. Specifically, the Arbitrator found that there was little evidence that justified requiring unvaccinated employees to wear an unpleasant mask for up to six months at a time. The public health advice and available evidence on this point in the context of COVID-19 strongly indicates the benefits of mask use.   Accordingly, it is certainly conceivable that in the context of COVID-19 that a VOM policy would be found to be reasonable.

More recently, in Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada, an arbitrator upheld the decision to implement a mandatory bi-weekly COVID-19 testing policy in a long-term care facility. In upholding the policy, the arbitrator held that the “intrusiveness of the test: a swab up your nose every fourteen days, against the problem to be addressed – preventing the spread of COVID in the Home, the policy is a reasonable one.” Importantly, the Home had not experienced an outbreak during the COVID-19 pandemic at the time the policy was implemented. The Arbitrator held that in the circumstances, it would not have been reasonable for the employer to wait until the facility had experienced an outbreak to implement the policy.

Take Away for Employers

Mandatory vaccination relating to COVID-19 is a novel issue with many relevant considerations. Employers considering mandatory vaccination policies should provide employees with advanced notice prior to implementing and enforcing any policies and may wish to first consider education campaigns based on government and scientific literature that encourages employees to voluntarily seek vaccination. It is not clear that mandatory vaccination policies will be upheld in all cases and they may be successfully challenged if they are not appropriately tailored to the specific work environment. Moreover, as outlined above, in most cases, policies must provide clear exceptions for individuals on the basis of religious or medical accommodation. As such, we suggest that you seek legal advice and assistance with drafting and implementing a vaccination policy in the workplace.

Additionally, it is important to point out the differences between COVID-19 and influenza. Based on the scientific literature to date, COVID-19 presents a far greater risk than influenza of serious complications and morbidity. Moreover, the vaccines have a higher purported efficacy rate. In working environments with a high risk of transmission or outbreak, or where there is a large number of at-risk individuals, there is an increased chance that a properly tailored mandatory vaccination policy may survive a legal challenge.

When considering whether to implement a mandatory vaccination policy, employers should consider the past history of transmission and whether it is possible to maintain social distancing in the workplace and/or implement other less intrusive measures to address the risk of COVID-19. For instance, many factory and industrial settings have been classified as COVID hotspots following an outbreak. In those circumstances, it may not be possible to accommodate an individual employee as the risk of outbreak may be too great. However, the particulars facts will dictate each case, even if two workplaces are in the same industry.

Israel Foulon Wong’s Response to COVID-19 Israel Foulon Wong is assessing the situation as it evolves, and is taking all necessary precautions within its workplace. To slow the spread of COVID-19 and for the health of our team and clients, absent extraordinary circumstances we are working remotely until further notice whenever possible. However, please be aware that our offices remain open and are fully functioning. In the circumstances, we encourage our clients to contact us by phone and email to the extent possible. Voicemail messages left at our office phone numbers are immediately forwarded via email. All messages will be promptly responded to. We remain steadfast in our commitment to our clients and would be more than happy to assist you with concerns regarding COVID-19 or any other employment or labour matters.