Starting last fall, public and private sector employers introduced vaccination policies into their workplaces.
The policies required employees to disclose their vaccination status and allowed employers to collect this data. The “vaccinate or test” policies then required unvaccinated employees to test for COVID-19 at regular intervals, usually with testing kits supplied by the employer. Other policies prohibited unvaccinated employees from working and placed them on unpaid leaves of absence. In addition, almost all policies required job candidates to be vaccinated in order to be considered for employment.
In the months following the introduction of these vaccination policies, we have seen significant litigation on the issue of vaccination mandates. Unions have pursued both individual grievances and policy grievances, and in the non-union setting some employees have sued employers, claiming that putting them on an unpaid leave of absence was constructive dismissal.
As the COVID-19 pandemic evolves, there has been significant easing of restrictions, including the lifting of the provincial vaccine passport program and indoor masking requirements. At the same time, many employers are now requiring their workforces to return to a physical workplace, either full time or under a hybrid model.
With the return to the physical workplace and the changing public health landscape, employers are now asking: Should we still be requiring our employees to be vaccinated?
There are different approaches to this issue and no one right answer. Many employers have decided that they will mirror the vaccine passport program and have lifted their policies. These employers are either allowing unvaccinated employees to fully return to the workplace or keeping them remote for the foreseeable future. An employer considering these options should closely review the potential impact on the rest of the workforce, as many employees are still uncomfortable working alongside unvaccinated co-workers, especially if the options for physical distancing are limited. Further, workers who are being asked to return to the office may be resentful of an unvaccinated co-worker who gets to continue to work from home full time.
Employers who do decide that this is the right time to lift a vaccination policy should be clear with their employees that the policy is suspended, rather than cancelled. This will allow a workplace to quickly and easily reintroduce the policy should the public health situation change in the future.
Other employers are keeping their vaccination mandates in place and taking a wait-and-see approach to the issue. These employers may avoid the morale issues associated with welcoming back unvaccinated workers and may help reduce workplace absences (unvaccinated individuals still have to isolate for longer periods if they are sick or exposed). However, COVID-19 vaccination policies are usually not intended to be in place forever, and employers should continue to monitor the actual risk of exposure in the workplace and assess whether the mandate is still necessarily to protect the health and safety of employees.
Further, with most employees having received their second vaccination sometime in 2021, employers should also consider amending their policies to require boosters. Without a booster shot, there may now be minimal difference between the vaccinated and unvaccinated in terms of protection, and requiring the workforce to be boosted could help minimize outbreaks and absences.
However, organizations will need to balance these interests with the fact that booster uptake has been far lower than the original round of vaccinations: requiring boosters could result in a significant proportion of the workforce not meeting the definition of “fully vaccinated.”
On the recruitment side, the potential legal risk associated with continuing to require candidates to be vaccinated is low, in that case law has held that applicants have fewer privacy rights than established employees.
As long as employers are clear about their requirements, and treat the information provided in a way that complies with their obligations under applicable privacy legislation, employers should feel free to continue to require candidates to be fully vaccinated even if they suspend their policies for their existing workforce.
Of course, any vaccination policy (including one that applies only to recruitment) should allow for potential human rights exemptions. Employees who are medically unable to get vaccinated or those who have a genuinely held religious belief that conflicts with vaccination, should be able to apply under the policy for an exemption.
Employers who are satisfied that the employee meets the criteria for an exemption should look at accommodations such as work from home arrangements, testing or masking. •
The article is for general information purposes only and does not constitute legal advice. Maggie Campbell is a partner at Roper Greyell, where she practises in all areas of employment and labour law.
