Workplace Vaccinations and other Uncomfortable Things (aka Legal Updates)

With the steady increase of vaccination rates across the country, many employers have hope for a return to normal.

For some, this will mean transitioning employees back to the office from remote work. For others this will involve a more wide-scale reopening and recalling employees from layoff/ leave.

Whatever the situation, many employers are asking the same questions, especially on the topic of vaccinations.

Can we make vaccinations mandatory for our employees?

 Under the Ontario Occupational Health and Safety Act employers have a duty to take all reasonable precautions to protect the health and safety of their workers. Some have taken the position that this allows them to implement a mandatory vaccination policy, particularly when employees are required to work in close proximity to each other or a vulnerable population.   In such circumstances, vaccination against COVID-19 is being declared an essential condition of employment, and employment contracts and policies are being updated to reflect this. 

 Having said that, without clear legislation or public health guidelines stating otherwise, it is unlikely that employers will be able to force employees to be vaccinated. Companies will have to be prepared to implement measures in the event that an employee cannot, or chooses not to be vaccinated.   A comprehensive vaccination policy that addresses these situations, and provides employees with appropriate incentives and resources to promote vaccination, will serve employers well in navigating the months to come.

What if an employee cannot or will not be vaccinated?

If an employee is unable to be vaccinated due to a medical reason, an employer has a duty to accommodate the individual under Ontario Human Rights Code. Appropriate accommodation may include ongoing use of personal protective equipment, modifying work duties, work from home, or a leave of absence.

The Ontario Human Rights Commission has stated that a singular belief or personal preference against vaccinations does not appear to be protected under the Ontario Human Rights Code. Accordingly, if an employee chooses not to be vaccinated due to their personal preference, the Company does not have an obligation to accommodate them.  Nevertheless, in most situations an employer could undertake to find a non-disciplinary alternative to vaccination. A comprehensive vaccination policy should reserve the right to take the necessary steps to protect the health and safety of its workers if an employee refuses to receive the COVID-19 vaccine.  This may include modifying work duties, a leave of absence, or the cessation of the employment relationship.

Can we ask for proof of vaccination?

An employee’s medical information is private and generally considered confidential. However, an employer could have a right to such information when necessary for a bona fide occupational reason. In the present circumstances, employers have a genuine reason for requesting the vaccination status of its employees.  However, employers must take all reasonable steps to ensure that this information is maintained in a secure and confidential manner.  The employer must not share the vaccination status of its employees without their written consent, unless required by law.  The medical information must also be destroyed as soon as the information is no longer necessary in accordance with applicable privacy legislation.  

Other Important Developments

 Infectious Disease Emergency Leave (IDEL) Extended: IDEL, which was set to expire on July 3, 2021, has been extended to September 25, 2021. This means that a temporary reduction to an employee’s wages or hours for a reason related to COVID-19 will continue to be a deemed emergency leave, and will not constitute a constructive dismissal of their employment (for the purpose of the Employment Standards Act at least).  The relationship between the IDEL and common law is complex and has been explored in the article above.  We encourage you to reach out to us if you have any questions with respect to wage reductions and layoffs during this period.

CERB and Wrongful Dismissal Damages: In the recent decision of Hogan v 1187938 B.C. Ltd. the  British Columbia Superior Court held that the damages for wrongful dismissal damages should be reduced by the amount of CERB payments received by the Plaintiff for the time that these two periods overlapped.  This case is a marked departure from the general practice of court which generally did not take into account any employment insurance payments when calculating wrongful dismissal damages. This shift is likely due to a recent Interim Order of the Employment Insurance Act, which holds that  if a person were terminated between September 27, 2020 and September 25, 2021, any termination pay, severance pay or wrongful dismissal damages they receive does not affect their EI entitlement (prior to September 2020, receipt of termination payments for a period in which EI was claimed, would result in an overpayment to EI).

AODA Update: Ontario has extended the deadline to file an AODA accessibility compliance report to June 30, 2021, from December 31, 2020. This is required for all businesses and non-profits with 20 or more employees. The report must outline their accessibility compliance under the Accessibility for Ontarians with Disabilities Act. If you have any questions, please do not hesitate to reach out to us.