Workplace Vaccination Policies
With the ramp-up in vaccinations across Ontario and a possible re-opening of workplaces in the weeks ahead, we’ve received many questions from Clients regarding whether they can (or should) implement vaccination policies in their workplaces.
We remain of the view that the government must take a leadership role and implement regulations to support clear and consistent public health policy that employers and employees can rely upon. Until that happens, we do not believe it is prudent for employers to ‘pioneer’ this unchartered territory by implementing new policies.
With that said, we make the following observations:
- Presently vaccines are not mandatory in Canada and there are reasons that an individual may not get the vaccine. With limited exceptions (healthcare, long-term-care homes) mandatory vaccine programs may not be an acceptable practice at this time.
- With that said, we do believe you can ask employees whether they have been vaccinated, intend to, or do not intend to get vaccinated. If an employee refuses vaccination, they could be asked to disclose the reason, to allow the employer to determine if a prohibited ground of discrimination is engaged.
- If the employee refuses to answer the question or provides medical or religious reasons (or another reason) which is protected by the Ontario Human Rights Code, and they can't be vaccinated, additional considerations apply (accommodation analysis).
- Could you place the employee on a protected IDEL leave, which means they have a right to their job but they are on an unpaid leave of absence from work until it's deemed safe for them to return? When will it be deemed safe to return to work for those who have not been vaccinated?
- Will it depend on where they work (for example, a private office vs public-facing role)?
- If, as now, accommodations can be made (physical distancing, masks etc. to minimize the health risk) you will need to weigh that in the balance, particularly if the employee asserts a status or condition under the Human Rights Code.
- Employees who are required to travel as a term of employment may have no choice but to be vaccinated.
- If the government mandates vaccinations in certain workplaces or jobs, employers will then be justified in implementing policies.
This is a developing issue and we expect greater clarity in the weeks ahead. In the meantime, if you need assistance or more information, please feel free to contact our offices, firstname.lastname@example.org or call 705-400-7145.