Episode 8: What employers need to know about workplace COVID-19 vaccination policies

21 juin 2021 | Stephen M. Torscher, Teri Treiber

( Disponible en anglais seulement )

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Transcript:


Hello and welcome to Morning Commute with Miller Thomson. You are listening to episode number 8.

Stephen:
My name is Stephen Torscher. I’m joined today by my colleague Teri Treiber. Teri and I work together in Miller Thomson’s labour and employment group advising employers with respect to all types of workplace issues.

Today we are talking about COVID-19 vaccination laws and policies, specifically in the workplace context. This is meant to be a general overview of some emerging workplace issues now that vaccinations are at the forefront of everyone’s mind. As with everything COVID related, this area is changing quickly so what we say today on the podcast could be different tomorrow. With the vaccine rollout well under way, one of the big questions for employers is the possibility of mandatory vaccination laws or policies. Employers are kind of left wondering whether a vaccination policy could work for their workplace or whether there are any alternatives they could implement to encourage their employees to get vaccinated. This is ultimately driven by wanting a safe workplace but also wanting to have their business return to normal, whatever that means. Spoiler alert, a mandatory vaccination policy might work for some employers, particularly in the healthcare industry, but for others there are a number of risks that will have to be considered before deciding whether it is worthwhile to implement one of these policies or if it would be better to look at an alternative. We will touch on some of these risks involved in implementing these policies which range from privacy concerns to human rights complaints. Teri, has there been anything notable in the law on this topic recently?

Teri:
Thanks Stephen. Well it’s important to start off enough by noting that there are currently no mandatory COVID-19 vaccination laws in Canada. I am also not aware of any case law that has considered the enforceability of mandatory vaccine policies in the workplace yet. COVID-19 may have been around for over a year now but vaccinations are still relatively new. As many people know, arbitration and court decisions can take quite some time, especially on new and important like this one. That being said, we have seen some case law in the past regarding influenza vaccine.

Stephen
Is the case law helpful in guiding how COVID-19 case law might go?

Teri:
That’s a great question. In my view, these cases are a bit tough to compare to the COVID-19 situation for three main reasons. First, COVID-19 and the flu are very different in terms of transmission and impact. COVID seems to be more infectious and appears to result in higher rates of hospitalization and death. Second, the influenza cases mainly come out of the unionized context. When it comes to non-unionized workplaces, the case law with respect to vaccines for influenza is simply not there. This can make it tough to try to directly apply the outcomes to non-unionized workplaces but I still think these cases are probably helpful in framing the way that we approach these types of policies. The third main difference is that these cases occur almost exclusively in the healthcare context. Given this distinct type of work environment with all of the risks and considerations involved, it is hard to apply the same case law to workplaces that do not have close contact with vulnerable patients.

Stephen:
Is there any kind of consistency on how these influenza cases have been decided?

Teri:
These cases often involve what is referred to as “vaccine or mask” policies, which basically give employees two choices: they can either get the flu vaccine or they can wear a mask during the flu season. These cases have gone both ways though so I cannot say that there has been a consensus. Some arbitrators have found the policies to be unreasonable and others have upheld them. It really depended on the efficacy of the vaccines which can vary each year when it comes to flu vaccines, the efficacy of masks and the risks involved to patients.

Stephen:
So, given the distinctiveness of influenza vaccine cases and the inconsistency in the decisions, how should employers move forward when implementing COVID-19 vaccination policies?

Teri:
In my view, it will likely be difficult for most employers to justify mandatory COVID-19 vaccine policies unless the employer can really demonstrate that vaccines are absolutely necessary to protect the safety of people in the workplace. Ultimately, if the justification is not there or it is not strong enough, it may be best to hold off. Otherwise you’re likely going to be exposing your business to some risks. Of course, at the end of the day, the decision will come down to the particular circumstances of the employer and their tolerance for that risk. That said, this could change depending on how things go in Canada with respect to COVID-19 and vaccines in the next few months.

Stephen:
Could you elaborate about what you mean by that?

Teri:
Well, right now I think there is some key evidentiary pieces missing, given that it is still early days in all of this. I’m definitely not a doctor or a scientist but it is my understanding that the data regarding the extent to which vaccines prevent spread is still unclear. It is clear that vaccines are highly effective in preventing vaccinated individuals from having symptoms of COVID-19 but it is my understanding that it is less clear to what extent it stops vaccinated people from being able to transmit the virus to others. If it is determined that vaccines do not effectively prevent spread or if we don’t know one way or the other, it might sort of take the wind out of the sails of an argument that vaccines are necessary in the workplace to protect others.

Further, I’m not sure that we have data yet about whether vaccines provide significantly better protection than the other measures that we currently use to prevent spread. So we already have things like masking, social distancing, sanitizing, contact tracing, etc., and if it turns out that these measures are just as effective as vaccines when it comes to the impact of COVID-19 in a workplace, then that could work against the argument for mandatory vaccine policies.

Stephen:
Would you say that vaccine efficacy plays a large role in these policies then?

Teri
Absolutely. A lot of the influenza policy cases failed due to the absence of this type of evidence about efficacy. I think that a lot of this data is still emerging in the COVID context and it will be interesting to see how it plays out in the coming months and years. Employers who decide to implement mandatory vaccine policies should be prepared to potentially have to spend some money to defend them. Expert evidence in relation to questions about efficacy of vaccines and other measures could be required.

Stephen, let me ask you – do you think the availability of vaccines is also a consideration?

Stephen:
That’s a really interesting question. There have definitely been some delays in getting people their vaccine. Not everyone who wants the vaccine can get one right now. Further, there are some people who simply can’t get a vaccine due to some health conditions as well. The timing of vaccine roll-out to the general population is still uncertain in some places and the roll-out for second doses is even more uncertain. This makes the timing of a mandatory vaccine policy tricky. By the time everyone who wants a vaccine can get one, the risks of COVID-19 may be significantly minimized due to herd immunity and other factors, which might make the policy tougher to justify as something that is absolutely necessary.

Teri:
Good point. We know that employers who choose to implement one of these policies could face some risks, could you touch on that?

Stephen:
Certainly. Mandatory vaccine policies are risky for most employers at this time and that’s due to a few reasons. When implementing one of these policies, it is inevitable that you will have to collect some personal data on your employees. Data collection beyond what is absolutely required always poses some risks so you might be placed in a situation where employees could make a privacy complaint because they simply do not feel comfortable sharing that information with you.

If your policy involves giving work to vaccinated employees versus those who have not been vaccinated, you might also face some constructive dismissal claims. We think that there is a good chance that a “just cause” termination would not be upheld if the reason for termination was failure to be vaccinated. Like it was mentioned earlier, some individuals do want to get the vaccine but they simply have not gotten it yet due to eligibility requirements, for example.

Of course, there’s also a risk of a human rights complaint as well. We’ve seen this in a lot of jurisdictions during the pandemic especially with mask mandates. For the most part, the human rights commissions and tribunals have required the complainant to show that these policies violate one of the protected grounds like physical disability, gender or religion. Bald assertions are not sufficient and evidence is going to be required.

There could also be a risk of liability if an employer mandates that an employee receive a vaccine in order to work and the employee has a serious adverse reaction to the vaccine. We think that this risk is probably pretty low though. It is ultimately the employee’s choice whether or not to get the vaccine and they would have to give informed consent at the time of administration so they would be getting the jab fully accepting all the risks involved.

Teri:
So, hypothetically, let’s say an employer knows all this and wants to implement a mandatory vaccine policy anyway. What are some suggestions you would make?

Stephen:
Well if an employer decides to implement a mandatory vaccine policy, we recommend that the policy clearly set out parameters for collection, use and disclosure of vaccine information and that it builds in opportunities for employees to seek exceptions on human rights grounds. For example, some individuals cannot or will not want to get vaccinated due to gender or pregnancy, disability or religion. It’s important not to penalize these individuals and to make it clear in the policy that these people can seek an exemption.

Another possibility is to make vaccination a condition of employment for new hires in the non-unionized context. Employers will have to be careful about how they craft the language of that condition given the eligibility criteria for first and second doses right now. And, of course, they will have to take into account human rights obligations to accommodate those who can’t get vaccinated because of a protected ground under human rights legislation.

Teri:
Are there any alternatives to a mandatory vaccination policy?

Stephen:
Definitely. We have seen some employers who have implemented voluntary vaccine policies, vaccine disclosure policies, vaccine incentives or vaccine education campaigns instead of a mandatory vaccine policy due to the level of risks involved with these things. We have seen things from time off given for vaccines, although in some provinces now, employers are required to provide paid time off for employees to get vaccinated. Some have offered additional paid time off for recovery so if you’re feeling crummy the day after you get your shot, you can stay home and recover and still get paid. Some employers have covered costs such as taxis or Uber fare to get to their vaccination appointment. Other employers have raffled off things like free parking for a year to employees who have gotten vaccinated. So there’s a lot of flexibility in terms of what employers can do and some of these options really do incentivize employees to get their vaccine. As always, these types of policies must take into consideration privacy and human rights laws as well.

Teri:
Thanks Stephen. Well, it looks like the jury is still out on mandatory COVID-19 vaccination policies in the workplace. Employers will want to keep in mind that they will need to demonstrate that vaccination is necessary to ensure a safe workplace and that this can’t be done through less onerous methods. This might be difficult to do given our current understanding of the virus and emerging data on vaccination efficacy. Regardless, privacy considerations and human rights obligations will be important to consider as well.

Thanks to everyone who tuned in today. We hope that this has helped clarify some of the issues surrounding vaccination policies and we hope that this has also provided you with some ideas on what you can implement in your own workplace.

If you’d like to discuss this topic or any other workplace issue, please feel free to reach out to Stephen, me or any other member of our team.

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