Can You Ask Whether Employees are Vaccinated (or Intend to Vaccinate)?
We think so. Not only can you ask employees about their vaccination status and intentions, in our view, you should ask. In one of our HRLive updates, we recommended that all Clients privately approach staff to find out their vaccination intentions. While you cannot insist employees vaccinate, you can ask an employee if they are getting the vaccine or if they intend to be vaccinated, in order to update the Covid Safety Plan for your workplace (if you don’t have a plan, contact us). Employers have the right and responsibility to provide for workplace safety and this is a reasonable question to ask in that spirit – just as you may have employees fill out a daily Covid-survey. If an employee refuses to answer or says they can’t vaccinate due to a medical or personal reason, don’t ‘push it’ further. But you can ask.
Mandatory Vaccination Developments
The federal government announced that it intends to require vaccinations as early as the end of September across the federal public service and the provincial government also announced that it will enact mandatory vaccination for education and healthcare workers, to become effective September 7, 2021. BC appears to be doing the same.
Once published, these policies may pave the way for employers to enact their own policies with more clarity and confidence. However, at this time governments have been very silent about the consequences for employees who refuse vaccination. We note that large corporations like SunLife who are requiring vaccinations are only doing so for those employees that voluntarily decide to attend the offices — keep in mind that they are not requiring anyone to return to the office.
The University Health Network Example
In the midst of this uncertainty, UHN appears to have released a policy that includes the termination of staff who do not comply (see more here). However, keep in mind that this policy only applies to 900 of their staff and hospitals which (by definition) care for ill people many of whom are immune-compromised. Still, this policy is the first meaningful benchmark in the debate, and undoubtedly other healthcare providers will follow suit. Whether this precedent broadens across Ontario workplaces remains to be seen in the weeks ahead, though we are seeing indicators that these types of policies are gaining momentum and appear to have public support (no surprise given that the majority of the province’s population has in fact been vaccinated).
Proceed with Caution
The UHN example aside, it remains our advice that clients refrain from implementing mandatory vaccination policies until more information is available in the weeks ahead (unless of course you are operating a provincially regulated healthcare or educational institution).
Reasons for our cautious approach include:
- The federal government has not released any policies. They have only announced “intentions.” It remains unclear at this time what form these policies will take. We do not know how medical and religious exemptions will be confirmed, the level of accommodation required for exemptions and perhaps most importantly, how the policies will impact unvaccinated employees who do not qualify for an exemption on medical or religious grounds.
- Employees with health conditions or a sincerely held religious belief will be entitled to accommodations (including work from home). It also appears likely that regular rapid antigen testing for staff who cannot (or will not) vaccinate may be required to accommodate unprotected staff and to ensure H&S. Rapid test administration and the mandatory reporting of these results to the government will not be welcome by all employers and their staff.
- These new policies haven’t been tested in court yet and (expensive) legal challenges are expected (additional damages will be assessed where a breach of Human Rights can be demonstrated).
- Additional arguments are emerging that mandatory vaccination policies may also violate Charter rights.
- Even if mandatory vaccination policies are found to be enforceable, it is not clear yet what types of workplaces or jobs may be permitted to require vaccination as a “bona fide” requirement. The Ontario government appears to be focusing solely on education and healthcare workers as it may feel those are the areas where it can best prove vaccination is a “bona fide” requirement.
- For now, the Ontario legislation contains no directives or regulations about how schools, childcare centres, and other covered organizations are expected to implement their vaccination policies. There are more questions than answers at the moment.
It will be interesting to see how the federal government’s policy withstands scrutiny as it has proposed a much broader approach which includes all federal public service staff as well as federally regulated workplaces (coincidentally, this announcement was made almost simultaneously with the election call). With Parliament in recess, vaccination requirements may not amount to more than campaign promises for the time being. Still, the Prime Minister’s increasingly tougher stance on mandatory vaccination in recent days is no doubt a reflection of the clear public opinion on this issue and the fact that the majority of Canadians have been vaccinated.
We continue to closely monitor these developments but it remains our recommendation that employers wait to see what form government policies take. We are currently advising clients against being pioneers on this frontier until we have more information in the weeks ahead.
When implementing mandatory policies becomes more timely, our research suggests that the following factors should be considered — and this will shape the form of any policies we will develop in future. In our view, mandatory vaccination policies should take the following factors into account (our opinion will change in the weeks ahead as new info becomes available):
- You have an objective, verifiable safety reason to mandate a policy.
- You are offering accommodation to any employee who has a medical or religious reason for exemption (WFH, re-assignment, rapid testing etc.).
- The nature of your workplace justifies the implementation of such a policy (risk to employees, customers, history of covid cases or outbreaks).
- The availability of other less intrusive means of protection will not be sufficient to safeguard your workplace (physical distancing, PPE, etc).
- You can demonstrate that vaccination is reasonable in all circumstances in your workplace to protect employees.
In the absence of a mandatory vaccination policy, we remind you that public health advice around hygiene practices, masking and social distancing remains in effect regardless of vaccination status.
We will also mention that employers retain the right to place employees on unpaid, job-protected IDEL leave if they have serious concerns about exposure to COVID-19, however, we are advised that those staff may seek constructive dismissal (or file complaints with the Ministry of Labour). We highly recommend consulting with us, your legal counsel or another qualified advisor before placing any staff on an unpaid IDEL leave.
The Bottom-line: Considering broad public support, the emerging delta variant, rising case counts and these latest legislative developments, it appears likely that we will see mandatory vaccination policies in several workplaces this Fall. Though employers must carefully navigate the hurdles discussed above when implementing these policies, consideration must also be given to ensuring workplace safety. Some vaccinated employees are expressing concern with employers that permit the unvaccinated to enter their workplaces. With unvaccinated adults making up 25% of Ontario’s population but 92% of Covid-19 ICU admissions, this is a concern that must be taken seriously.
We are continuously monitoring this issue to ensure our HRLive Clients remain up-to-date and recommend consultation before proceeding with the implementation of policies to address this issue.
Changes and challenges will continue, but we are here to provide you with the advice needed to understand the impact of these developments in your workplace.
If we can be of assistance, please feel free to contact us anytime, email@example.com (705-400-7145).
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Note & Disclaimer: This information is being provided for general information and assistance only and should not be exclusively relied upon – we highly recommend you contact the government agency responsible for these programs or a qualified professional (depending on the issue) for information about your particular situation. We will not assume any responsibility or liability for any costs, damages, losses, liabilities or expenses incurred by anyone else as a result of circulation, publication, reproduction, discussion or use of, or reliance upon this report which is being provided for general information only on a complimentary basis.