Episode 12: COVID-19 mandatory vaccination – Issues related to employment

( Disponible en anglais seulement )

14 octobre 2021 | Tracey M. Bailey, KC, Annie Alport, Stephen M. Torscher, Tari M. Hiebert

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Tracey Bailey: Hello, and welcome to Morning Commute with Miller Thomson.  You’re listening to episode #12.

Tracey: I’m Tracey Bailey

Annie: And I’m Annie Alport, and we are part of Miller Thomson’s national health industry team.

Tracey: Today we are joined by two of our colleagues, Stephen Torscher and Tari Hiebert to continue our conversation about COVID-19 vaccination policies, some of which require vaccinations to take part in certain activities such as going into work.

Annie: So Stephen specializes in labour and employment law, and Tari works extensively in occupational health and safety, and we are going to hear from them to find out more about issues related to employment, whether in unionized or non-unionized settings, and related considerations, such as legal duties to provide for a safe workplace.

Tracey: Whether members of our health industry and labour and employment teams have been advising health industry clients from large and small business, many of the questions have been around whether or not employers can implement such policies, and if they can, how can it be done?

Annie: So today we are going to chat a bit more about: When employers can implement policies; secondly, how; and on what basis they may be challenged in an employment law or collective agreement context.

Tracey: Stephen, in some cases, certain employers are being required to implement mandatory vaccine policies.  In other words, policies that require proof of vaccination for COVID-19 to work in certain settings or to come to work at all.  So, for example, as you know we have seen in BC certain health industry organizations mandated to do so in keeping with an order under that province’s public health legislation.  In other cases, such as in Alberta, our regional health authority, Alberta Health Services, has decided to implement a policy as an employer rather than as a result of any order.  But regardless of the type of employer you are, what factors do employers need to keep in mind?

Stephen Torscher: That’s a good question, Tracey, and something that we have been dealing with a lot lately.  I think the biggest factor to keep in mind is that employers are always obligated by health and safety legislation to take all reasonable steps to ensure a safe workplace for their employees and for others that may be present at the worksite.  The specific language of the legislation might vary from one jurisdiction to the next, but the basic premise is the same.

So then the question becomes, in the context of the COVID-19 pandemic, what must an employer do to address these risks? In the case of employers that might fall under an order, it is important to review the details of that order.  Employers will need to ensure that they follow those requirements that are dictated by the government or the local public health legislation.

For other employers that may not be under an order, they have to go back to first principles and look at what is reasonably required to protect those workers at the worksite.  For some, this will go beyond just protecting their workers, though.  Think of long-term care providers, for example.  The need to protect residents who are likely to be at greater risk of contracting COVID-19 and could suffer greater health consequences if they do catch the virus will be a key consideration.  For others, I think employers will have to look at the nature of their business and how their employers do their work.  There may be less justification for a mandatory vaccine policy where your employees will have little to no contact with the public or other co-workers, such as employees who are working from home.

Annie: And then so what are the key employment law considerations for non-unionized employees, Stephen?

Stephen: Well any policy that’s introduced by the employer must be reasonable.  It should allow for certain exceptions in the case of employees who might not be able to get vaccinated for reasons that are protected by human rights grounds.

When it comes to non-unionized employees, I think you need to look at current employees and prospective employees a little bit differently.  For current employees, there is always a risk of constructive dismissal if you change a fundamental term or condition of employment without the employee’s consent.  We see this with demotions and wage rollbacks from time-to-time, but there is also a risk of constructive dismissal if you introduce a new job requirement, like the requirement to be fully vaccinated.  This risk can be reduced if there is a term in an existing employment contract for these employees that explicitly grants the employer the right to introduce new or change existing workplace policies.

For new hires, however, there isn’t quite that same risk because you can make vaccination one of the conditions of employment.  Employers wouldn’t be changing the terms of employment mid-stream because the employee hasn’t started yet.

Tracey: If you didn’t have authority under an employment agreement, what would be the potential repercussions, Stephen?

Stephen: Probably the two biggest risks are the potential for a human rights complaint or a constructive dismissal lawsuit.

A human rights complaint could result if an employee claims they are unable to comply with the policy because of a protected ground, such as a disability or religious beliefs and the employer does not accommodate the employee.  Sometimes accommodation may not be possible, but for the most part, every employer has the duty to accommodate these employees to the point of undue hardship.  How far an employer needs to go will depend greatly on the particular circumstances of the employer and the employee and the nature of the work too.

Constructive dismissal is also a risk.  When an employee claims they have been constructively dismissed, they are entitled to consider their employment ended and they can sue the employer for essentially the same kind of damages that they would receive if they were wrongfully terminated.

Annie: Stephen, so one question I had was how can an employer force a mandatory vaccine policy?  What challenges could employers face?

Stephen: Enforcing these policies will no doubt be a challenge in the next few months.  Employers are basically working without a safety net here because there are no court or arbitration decisions that touch on the enforceability of these types of COVID-19 policies in Canada.  There are some decisions out there about seasonal influenza policies in unionized workplaces and a smattering of other decisions in the human rights context out there that exist here and there, but largely these policies have not been judicially considered by our courts.  Until then, I think employers will have to do their best to ensure that the policies are reasonable, implemented in good faith, and they are going to have to be flexible as they work through some of these issues.  I think the larger the workplace, the more likely you are to find some employees who resist the policy – people who are hard core anti-vaxxers or even people who are just hesitant and unsure at this time if getting vaccinated is the right decision for them.

The first step should probably be education.  Ensure that your employees have accurate, factual and up-to-date information on the safety and efficacy of vaccines and why they are being implemented at this particular time.  For those that still decline to be vaccinated at that point ,the employer will have to decide whether they can be reassigned to another area where their lack of vaccination will pose less of a risk, like working from home or in a position that minimizes their contact with others.  Or perhaps they will have to consider putting some of these employees on a leave of absence of some sort.

Employers should also be ready to address what might happen when an employee requests an exception based on a protected ground under human rights legislation.  Employers should understand what evidence they might require from employees in order to get that exception.  Typically, a bald assertion that an exemption applies is not sufficient, but the kind of evidence that you can require could be dictated or limited by legislation in some jurisdictions, so it’s important to check your local listing.

Annie: Awesome, thanks for that Stephen.  So then what would change in a unionized context?  What would be the key factors there?

Stephen: I think many of the same factors are going to apply in the unionized context that we’ve already talked about.  Policies will have to be reasonable, they will have to allow for exceptions based on human rights grounds and they will have to be enforced in a reasonable manner, etc.  But the added wrinkle is obviously the involvement of the union.

In a unionized workplace, the terms of employment are going to be dictated by the collective agreement, so the language of each agreement is going to be critical.  Some agreements may allow employers more leeway than others to introduce new workplace polices.  Obviously, if the local signs off on the new policy and agrees to its implementation, that will help.  That is not always the case.  That may also be a challenge depending on whether you’re in the middle of bargaining for a new collective agreement, because it adds yet another weighty issue that needs to be negotiated.  And of course, introducing changes to the terms and conditions of the workplace will not be permitted in most cases when there’s a freeze in effect, so that is something that needs to be kept in mind as well.

Tracey: Thanks Stephen.  As we know, there have been a number of challenges in unionized settings with respect to influenza vaccination policies.  What challenges do you think are specific to this unionized environment?  And thinking about all of the case law out there, out of that unionized collective agreement context, can you sum up whether the cases are in support of this kind of move or not, thinking specifically about COVID-19?

Stephen: Well in terms of what employees in a union can do to challenge these policies, I think employees who feel that they have been negatively impacted by these policies can work with their unions to file an individual grievance against the employer.  The union could also potentially file a policy grievance on behalf of all employees to challenge the mandatory vaccine policy as a whole.  If a union declines to file a grievance on behalf of an employee, and we’ve seen a lot of unions come out in support of these policies in theory, so it remains to be seen whether the unions themselves will challenge the policies wholesale or wait to see how they are implemented and perhaps challenge some of the decisions there, but if an employee nonetheless persists, an employee can look to the local labour relations board to file a complaint based on a failure of the union to properly represent them as well if the employee feels that a grievance should have been filed and wasn’t filed by the union.  This is usually called a duty of fair representation complaint.

As I mentioned, we don’t have a lot of jurisprudence yet specific to COVID-19 vaccination.  What we do have typically comes from seasonable influenza cases.  There, a lot of the challenge faced by employers had to do with the evidence of the efficacy of influenza vaccinations versus the efficacy of other measures, like handwashing, masking, PPE, etc.  Evidence of the risk in the workplace was also important because these policies are more likely to be upheld where they are designed to help protect a vulnerable population.  Influenza policies that were upheld often allowed employees the option of remaining out of the workplace during an outbreak as well.

We expect that COVID-19 vaccination policies may be viewed differently for a few reasons.  First, evidence of the efficacy of the vaccine shows that COVID-19 vaccines are much better at protecting individuals from infection and severe outcomes than the seasonal influenza vaccines are at protecting individuals from the flu.  At best, influenza vaccines are somewhere around 60% effective, whereas the COVID-19 vaccines are in the 80, 90 range.

Another big difference is that we’re in the midst of pandemic right now.  We have seen widespread transmission of the virus resulting in a critical strain on our healthcare system and a much larger number of severe outcomes and deaths than we see in the case of seasonal influenza outbreaks.  I think this is an important difference in context that sets the present situation apart from what we’ve seen in the past.  What human rights and arbitration decisions we have seen so far in the context of masking suggest that courts and tribunals are likely to take COVID-19 protocols very seriously going forward, and that’s going to be another key difference here.

Annie: Thanks so much Stephen.  Tari, I’m going to turn to you.  So in thinking about the law and duties to ensure a safe workplace, it will depend on the workplace and, of course, whether it’s federally or provincially regulated.  Taking Alberta as an example, how do you say occupational health and safety legislation impacts whether such policies should be considered?

Tari Hiebert: Thanks Annie.  For a provincially regulated employer in Alberta, it’s really important to look at the communications that are coming out from the Alberta Occupational Health and Safety Department.  The obligation to maintain a safe and healthy workplace, of course, comes from our Occupational Health and Safety Act, but when we look at the publications coming out from the department itself, it gives us some guidance as to how vaccination policies or using vaccination in the workplace will be looked at by Occupational Health and Safety investigators, which is very important for employers who are trying to consider what their regulatory risks are in the management of their operations.

Alberta Occupational Health and Safety issued a bulletin, updated as recently as September 7, 2021, stating that COVID-19 is a hazard in the workplace, meaning all workplaces, not just healthcare facilities or the healthcare industry, and that employers have an obligation to complete a hazard assessment for their workplace, which should include documentation of all controls that will be used to eliminate or control this hazard.  This obligation to assess hazards, any kind of hazard, and to control for that hazard in the workplace, comes directly from Section 7 of the Alberta’s Occupational Health and Safety Code.  That same bulletin that I’m referring to indicates very clearly that vaccination is considered “an engineering control”, along with ventilation systems in your facilities, and these are considered, according to Alberta Occupational Health and Safety, first choice controls for eliminating or controlling a hazard in the workplace.

In my view, this type of publication from Alberta Occupational Health and Safety lends support to employers considering vaccine mandate of some type within the workplace.  Obviously, vaccination policies in a workplace are not going to be a one size fits all situation, because different employers have different types of operations, different types of facilities, different types of work, and their workers are exposed to different levels of risk from the virus depending on what they’re doing, where they’re doing it and how close they are in proximity to customers, clients, the public and other workers. In general, what I would say is that Alberta Occupational Health and Safety, and its investigators, are likely going to view vaccination policies within the workplace favorably, because vaccination is a powerful tool for reducing the hazard posed by COVID-19 in all workplaces, not just in the healthcare industry.

Annie: Excellent.  Thanks Tari.  So what are some key factors that employers should consider if workplaces, whether health or otherwise, like you said, are considering or working towards implementing a policy?

Tari: I think it’s really important to get all of the required pieces in place and that it’s better for employers to handle all aspects of this together, as opposed to just introducing a policy in a vacuum.  So it’s critical that hazard assessment that I was just referring to has been done and that the workplace has carefully and thoughtfully considered how to reduce the risk of transmission in the workplace, because different parts of the workplace in different sectors of your workforce may need different kinds of controls.  Then once we have that very important document in place, which is required under our Code, then we can move on to having a well-drafted policy that will clearly explain why the employer is taking these steps and also clearly explain how the information collected from workers regarding their vaccination status is going to be used.  So in other words, that policy can’t be exercised in a vacuum.  It really needs to explain clearly to workers why it is being put into place and how that information from workers is going to be used for health and safety planning purposes and to reduce the risk of transmission in the workplace.

I think it’s also very important if you’re introducing a type of policy along these lines that you keep the communication channels with your workforce open.  We know from other examples of safety procedures in the workplace that safety in the workplace really becomes a culture and it’s a culture that the employer and the employees have to work together to support.  And so by keeping the communication channels open with your employees, and making it clear from the get-go that your policy and the controls that are in place to address the hazard of COVID-19 could change in the future is very important, so that we don’t give people a false impression that once they get vaccinated, everything will be fine, we don’t have to worry about this anymore.

We’re so early in the pandemic and the virus is constantly changing, we just don’t know what will happen in the future.  We may be facing variants that are more contagious or more deadly in the future, or maybe not, and employers will need to communicate to their workers that they are undertaking these policies for the health and safety of everyone, but that these policies are also subject to change, because you may need in future, as an employer, even more onerous restrictions or controls within the workplace or you might need fewer.  It’s just too early to tell.

And so I would really love to see employers and employees working together to support a culture of safety within the workplace, just like they would for fall hazards or fire hazards or any other type of hazard that is in the workplace.  This, of course, is a respiratory illness and this is a new type of hazard for many, many employers who have never had to deal with this sort of risk in the workplace before, but together I think that if we’re flexible and we keep the communication channels open with employees, we can get more buy-in from workers for these types of health and safety policies.

Tracey: Tari and Stephen, thanks so much for chatting with us today about these important workplace issues.  That was a great overview of some of the key factors we’ve been advising on as both employers and employees seek to navigate the changing landscape in the context of COVID-19.

Annie: Yes, thank you both. And for those listening, if you’re interested in vaccine passports, and who isn’t these days, stay tuned.  Tracey and I will be discussing that in our next episode.

Tracey: Thanks for joining us.


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