Employers across the country have obligations under health and safety legislation to take precautions reasonable in the circumstances to protect the health and safety of their employees. This includes taking all reasonable steps to prevent the spread of COVID-19 in the workplace. Depending on the nature of your workplace, this may include implementing a mandatory vaccination policy.
Two weeks ago, the federal government announced it planned to impose a broad vaccination mandate for employees of the federal public sector and federally regulated employers such as banks, airlines, rail and inter-provincial trucking companies. Many of the provinces followed. Provinces such as British Columbia have announced broad vaccination mandates, while provinces like Ontario, Quebec, Manitoba and New Brunswick are requiring employees in certain industries to be vaccinated. Hundreds of employers across Canada have made similar announcements, including the five major banks, law firms, universities and high schools, telecommunications companies, airlines, sports and entertainment venues, restaurants, small businesses, hospitals, insurance companies and churches.
If you are considering implementing a mandatory vaccination policy, we suggest you consider the following:
- One Size Does Not Fit All - Consider whether your workplace requires a mandatory vaccination policy. How many employees do you have? Do you know what percentage are already vaccinated? Are they required to attend at the workplace? What is their working environment? Are they required to congregate in close spaces? Are there other things about your work or workplace that put people at risk of COVID-19? These are all factors that should be considered when deciding whether to implement a mandatory vaccination policy.
- Needles in Arms - Make it clear that you are not forcing needles into arms. With all of the misinformation out there, some employees unfortunately still believe that a mandatory vaccination policy means employers will be forcing a needle into their arms. Employees still have a choice, but their choices have consequences.
- Policy Should Not be Punitive - Although there may be consequences for employees who fail to comply with the policy, stress the reason you are implementing the policy – to provide a healthy and safe workplace. The policy is not intended to punish or shame the unvaccinated.
- Consider Making Your Policy an “Interim” Policy - With the COVID-19 landscape continually shifting, it is likely that employers will have to continue to adapt as employees return to the workplace. One way to signify that you will continue to adapt is to communicate that the policy is an interim policy only, and that you will continue to re-assess the needs of the workplace.
- Scope - To whom will the mandatory vaccination policy apply? All employees? Prospective employees? Customers? Contractors?
- Effective Date - Consider how “fully vaccinated” is defined. If it is defined as two doses of the vaccine plus 14 days, consider delaying the implementation of the mandatory vaccination policy until all employees have an opportunity to become fully vaccinated.
- Proof of Vaccination - Depending on the nature of your workforce, you may be prepared to accept employees’ own confirmation of vaccination status. If so, will vaccination status be collected verbally or by written communication? Will employees be required to attest to their vaccination status? Or will you require employees to provide Ministry of Health proof of their vaccination status? If so, how will you collect such information? In order to maintain the privacy of this medical information, consider who will review the information and how, or indeed whether, it will be stored. This is particularly important for federally regulated employers and employers in British Columbia, Alberta and Quebec where it is employment-specific privacy legislation.
- Consider Alternatives - Depending on your organization, there may be alternatives to vaccination. Will employees be permitted to work from home? If not, is masking and regular COVID-19 testing sufficient? If so, who will pay for the COVID-19 tests?
- Contemplate Accommodation - In rare cases employees may be unable to be vaccinated due to a medical condition or religion protected by human rights legislation. Make sure your policy sets out that there may be some limited exceptions, and the process for employees should follow to request accommodation.
- Consequences of Non-Compliance - Consider informing employees that there may be employment consequences for their non-compliance with the mandatory vaccination policy. If there are consequences, consider “warning” employees before taking action.
Notwithstanding the above, many employees may continue to be reticent. Treat those employees with respect, explain your processes, continue to adapt and always keep in mind the purpose of your policy. By doing so, you should be able to minimize the risks associated with implementing a mandatory vaccination policy.
If you need help preparing a vaccination policy or advice on the issues raised, please contact your regular Fasken lawyer.