By Juan Echavarria
As COVID-19 vaccines become more accessible throughout Canada, many businesses have begun to plan for the eventual return to the workplace, including setting up policy frameworks regarding health and safety. As a result, the most common questions in the minds of business owners across the country are whether employees can, and should, be required to provide proof of vaccination, and what recourse will employers have where an employee fails or refuses to provide this information.
The answer to these questions varies depending on the nature and location of the employer. * Federally regulated employers must follow employment standards legislation set out by the federal government, while provincially regulated employers will be subject to the employment legislation defined by the specific province in which they operate.
While there is generally some overlap between provincial legislation regulating employment standards, the laws of each province can vary in key aspects, which can significantly alter the approach that can be taken by employers in those provinces.
Generally speaking, any policy requiring proof of vaccination from employees must take into consideration the employer’s privacy and human rights obligations under applicable legislation. For example, such policies must consider the employer’s duties when collecting and/or disclosing an employee’s private information, and the employer’s duty to accommodate its employees where there are religious exemptions or documented medical reasons preventing an employee from getting a vaccine.
Workplace policies must be geared towards meeting a reasonable need of the employer. Policies requiring employees to comply with an illegal or unreasonable request may not be enforced by the courts. Whether a policy requiring employees to provide proof of vaccination will be reasonable may depend on the risk associated with employees failing to get a vaccine.
For example, the government of Ontario has recently made it mandatory for some employers, considered to operate in high-risk settings, to have a vaccination policy. This included hospitals and other health care facilities, retirement homes, schools, and post-secondary institutions, among others. The recommendation of the government of Ontario regarding vaccination policies in high-risk settings was to require proof of either: (i) full vaccination against COVID-19; (ii) medical reason for not being vaccinated against COVID-19; or (iii) that employees who do not provide proof of vaccination, or a medical justification, must complete a COVID-19 vaccination educational session. The government of Ontario will require employers in high-risk settings to obtain proof of negative COVID-19 test results on a regular basis from employees who do not provide proof of vaccination.
Similarly, the federal government recently announced that it will require federal public service employees and those in federally regulated industries such as air, rail and marine travel, to be fully vaccinated. Employees in these sectors who do not provide proof of vaccination, other than those with a demonstrable medical reason for not being vaccinated, will risk losing their jobs.
WHEN IS VACCINATION A REASONABLE REQUIREMENT?
Given the serious health concerns caused by the spread of COVID-19, employers must attempt to keep workplaces safe for employees, clients, and all others who are required to interact with employees as they carry out their duties. The extent to which employers may be allowed to implement vaccination policies could depend on the industry, and whether requiring proof of vaccination may be a reasonable requirement for a specific job. For example, requiring proof of vaccination of an employee who will continue working full-time on a work-from-home basis may not be reasonably necessary.
On the contrary, employees working for employers who provide “essential services,” and thus remained operational throughout the pandemic, may be reasonably required to provide proof of vaccination. Likewise, proof of vaccination may be reasonably necessary in high-risk settings, such as where employees are required to interact with others in confined spaces, or with individuals with heightened health risks.
While some essential services operated on a different basis before vaccines became available, for example, by requiring use of personal protective equipment, or “PPE,” and regulating foot traffic, employees providing such services are likely entitled to require proof of vaccination, as this is the most effective tool to reduce the risk of COVID-19 in the workplace. This is especially true in light of the various provincial plans to fully reopen businesses, and the continued risk of COVID variants, such as the Delta variant.
Failure to comply
Where employers decide to implement a vaccination policy requiring proof of vaccination, they must consider how they will seek to enforce the policy if an employee does not comply. Employers may decide to address noncompliance, for example, by terminating an employee’s employment for cause, terminating without cause, suspending such employees, or placing them on a work-from-home arrangement where possible. However, employers must be mindful of the legal risks associated with disciplining employees who do not comply with vaccination policies.
Terminating, suspending, or modifying an employee’s employment may result in legal action by the employee, in the form of wrongful and constructive dismissal claims, as well as potential human rights claims.
Where a business terminates an employee’s employment for cause, meaning without any severance pay or notice, the employer will be required, in the event litigation ensues, to demonstrate why it was entitled to effect such severe punishment. This is a difficult threshold to meet.
A refusal to provide proof of vaccination is unlikely to justify termination for cause in most cases, with the exception perhaps of employees working in high-risk environments, such as employees providing care to immunocompromised individuals. However, this has not yet been decided in the courts, and so it may be that termination for cause for refusing to provide proof of vaccination will not be possible even in high-risk workplaces. As a result, employers who take this measure could face protracted and costly litigation.
If the employer chooses a less severe form of discipline, such as suspension or modified duties, employees may still take the position that this constitutes a dismissal, because the employer has terminated the employment relationship by unilaterally changing a substantial or key aspect of the employee’s job, which is known as a “constructive dismissal.”
Furthermore, employers must also consider the potential risk of human rights violations when disciplining employees. All provinces in Canada provide protection on the grounds of disability and religion, though in Ontario religion is encompassed under creed. This means that where an employee has a demonstrable medical reason and/or religious reason for not getting a vaccine, the employer may be expected to make the necessary accommodations. This might mean requiring ongoing COVID testing, and/or work-from-home arrangements, for example.
Dismissal without cause
Where an employer has determined that it wishes to terminate employees who do not comply with a vaccination policy, it may also decide to dismiss such employees without cause. This will require the employer to pay the employee at least the appropriate amount of pay in lieu of notice and/or severance, as required by the applicable provincial legislation. This is generally known as the “minimum employment standards.”
The amount of pay required varies depending on the province in which the employer is located. However, whether employers can dismiss an employee without cause by paying only the minimum employment standards will depend on the specific context of the employment relationship. Employers must also consider whether a valid employment contract is in place, which allows the employer to limit the amount of notice and severance pay to the minimum employment standards. Where this is not the case, employees may be entitled to a greater amount of notice known as “reasonable notice.” In any event, the employer must still take into account human rights considerations prior to dismissing an employee with or without cause.
Given the novelty and complexity associated with implementing and enforcing mandatory vaccination policies, some employers may instead choose to establish a discretionary policy. Such policies would allow employees to get vaccinated at their own discretion, and/or simply require disclosure of vaccination status to the employer, so that appropriate health and safety measures can be implemented.