Mandatory vaccination may not be an option for construction employers

Vaccination delivery programs are finally ramping up across Canada. As a result, many construction employers are questioning whether they should be drafting and implementing mandatory COVID-19 vaccination policies as a condition of continued employment.

An employer who wants to lay off or terminate an employee who refuses to get vaccinated must first ensure that the company’s mandatory vaccination policy is reasonable, necessary, flexible and clearly implemented. If a proper vaccination policy is carefully created and it meets these criteria, it may be legally enforceable. However, our view is that in the overwhelming majority of situations in construction, a mandatory vaccination policy will be difficult to justify as either reasonable or necessary.

Some environments, such as warehouses, distribution centres and hospitals, require workers to work for lengthy periods of time in proximity to one another. These types of environments are inherently at risk for COVID-19 outbreaks, and it is in these types settings where it may be reasonable to implement a mandatory vaccination policy.

The implementation of a vaccination policy would require employees to report or prove their vaccination status, and may also involve changes to employees’ job descriptions. Either of these measures could lead to a breach of privacy laws or allegations of constructive dismissal. In advance of implementation, therefore, it is essential that an employer ensure the reporting requirements comply with privacy law obligations.

In addition, an employer will not be able to implement a blanket vaccination policy but must instead consider whether less intrusive options for workers (or some workers) would suffice instead. The employer should consider the potential protections offered by physical distancing, PPE, masks, Plexiglas barriers and whether some employees’ job descriptions would allow them to work from home.

In British Columbia, we have, fortunately, not seen large COVID-19 outbreaks on construction sites, despite their continued operation throughout the pandemic. Construction employers and employees have been very successful at avoiding outbreaks through far less intrusive means than a mandatory vaccination policy. We expect that this fact alone will weigh heavily against a construction employer seeking to implement a broad-reaching mandatory vaccination policy at its sites.

However, not every circumstance on construction sites is the same, and there may be specific circumstances where a carefully drafted mandatory vaccination policy is reasonable and necessary. In those situations, employers should conduct a detailed workplace assessment, narrowly defining the need for mandatory vaccinations, and put together a carefully drafted policy, consulting experts for advice where necessary. Only a policy that can be legally and scientifically supported as reasonable, necessary, flexible and clearly implemented may ultimately be enforceable. •

Norm Streu is executive vice-president, NCM development, Nexii Building Solutions. Christopher Hirst is managing partner at Alexander Holburn Beaudin + Lang LLP. This article was written with the assistance of Heather Devine, also a partner at Alexander Holburn.