Included in Discovery: Atlantic Education & the Law – Issue 08

Sheila Mecking and Evan MacKnight

More than a year has passed since the Coronavirus disease (“COVID-19”) arrived in Atlantic Canada and caused all in-person events, gatherings and classes to grind to a halt. Colleges and universities were forced to shift to an online format and conduct classes via videoconference and pre­recorded lectures. While all post-secondary institutions have done well to provide a substitute for in-person classes, there is no question that the “all-online” format has been taxing on students and professors/ instructors alike.¹

Those on the verge of burnout should rejoice over the recent news that all Canadians who want a vaccine should be able to get their first dose by Canada Day 2021.² Currently, the approved vaccines in Canada range in efficacy from 66%³ to 95%⁴ according to clinical trials, and have little side effects.⁵

With no commitments from government authorities on enforcing mandatory vaccinations for all those who are capable of getting vaccinated, employers will play a crucial role in the campaign to inform and vaccinate the general public. Whether employers should make COVID-19 vaccinations mandatory or not will be fact-dependent; however, every employer should at least consider implementing some form of workplace vaccination policy.

Educate and incentivize

The approach we are currently recommending employers take is to educate, encourage and incentivize vaccination. It is important for employers to act now, before vaccines are widely available, to provide employees with as much information as possible regarding the approved COVID-19 vaccines. This should include information regarding the efficacy, the risks, as well as the availability of the vaccines and where employees can get a jab once available. Updated information should be frequently shared with employees and should come from all levels of management. Employers should ensure that employees are receiving their information regarding COVID-19 vaccines from credible sources, as reports show that misinformation from social media is a major contributor to vaccine hesitancy.⁶

In addition to informing employees, employers may also want to consider incentives for employees who sign up for the COVID-19 vaccine. Incentives might include paid time off to get the vaccine, an extra vacation day off or possibly a 2021 holiday party if enough employees get vaccinated. For some, it will be incentive in and of itself to not have to wear a mask at work (once public health authorities deem it safe) and to be able to gather with fellow vaccinees.

Can an employer require employees to be vaccinated against COVID-19?

There may be some employees who will refuse to vaccinate regardless of the approach taken by the employer, which begs the question: “Can an employer require employees to be vaccinated against COVID-19?” The answer to this question is a qualified yes, in certain workplaces.

Employers have a general duty under occupational health and safety legislation to take all reasonable steps to ensure a safe work environment. What is considered “reasonable” is likely to depend on the respective workplace. For instance, there may not be a need for a professor/instructor who only ever teaches online to have to get vaccinated to ensure a safe workplace, but there would be such a need for a professor/ instructor who works and interacts with hundreds of students. Other factors such as numbers of cases in the province or in a specific workplace will also need to be considered.

Risks of vaccination policies

Mandatory vaccination policies are not without some risk for the employer. Employers with a unionized workforce run the risk of their policy being grieved and subjected to arbitration. In the non-union context, employers are at risk of facing a constructive dismissal claim from a disgruntled employee who considers the vaccination policy a unilateral and substantial change to their employment contract. In either environment, employers should be aware of the human rights and privacy implications of implementing a vaccination policy.

While there are currently no reported decisions regarding mandatory COVID-19 vaccination policies, there are some prior decisions pertaining to mandatory flu shot policies which give an idea of how future decisions may be decided. For instance, in Trillium Ridge Retirement Home v Service Employees Union, Local 183 (Vaccination Grievance), [1988] OLAA No 1046 (ON LA), the arbitrator held that a policy, which required employees at a retirement home to either (1) get a flu shot; (2) take an anti-viral medication in the case of an outbreak; or (3) miss work without pay until the outbreak subsided, was reasonable. The arbitrator agreed with the evidence submitted by the employer which showed that vaccinating residents and employees was an effective means of preventing transmission of influenza. The arbitrator also found that, due to the prevalence of asymptomatic transmission, it was not reasonable for employees to self-monitor and stay home when they show symptoms.

Recent cases pertaining to COVID-19 policies may indicate how arbitrators are likely to decide future COVID-19-related cases, including mandatory vaccinations. In Caressant Care Nursing &  Retirement Homes v Christian  Labour Association, 2020 CanLII 100531 (ON LA), the employer nursing home introduced a policy requiring all staff to undergo bi-weekly COVID-19 testing. Employees who complied were paid for one hour of work and had their hospital parking fees waived. Employees who refused to get tested had to wear additional PPE for the entirety of their shifts. The union filed a grievance, arguing that the policy was an unreasonable exercise of management rights. The arbitrator, in dismissing the grievance, held that the benefits of preventing an outbreak in the nursing home outweighed the intrusiveness of the bi-weekly COVID-19 test.

In Garda Security Screening Inc v IAM, District 140, [2020] OLAA No 162, an airport employee was terminated after attending work while awaiting results of a COVID-19 test. This was in direct violation of the employer’s guidelines which required employees to self-isolate while awaiting test results. The arbitrator found that the employee was made aware of the employer’s requirement for employees to self-isolate, but went to work anyway, putting her colleagues, airport staff and patrons at risk. The arbitrator dismissed the grievance and upheld the termination.

These cases tell us that arbitrators are aware of the increased risks posed by COVID-19 and the need to mitigate those risks to ensure a safe workplace.

Policy considerations

When developing your COVID-19 vaccination policy, it is important to consider the following:

• The need for a clearly-worded policy – it is important that employees are able to read and understand the reason for the policy, what the policy requires of an individual and what the consequences are for failing to adhere to the policy.
• Alternatives to mandatory vaccination – mandatory vaccination may not be needed for every workplace; there are some environments where alternatives to vaccination, such as enhanced PPE and remote work, may be an acceptable alternative to vaccination. Employers should not punish employees for refusing to vaccinate, but may provide less attractive alternatives, such as unpaid time off.
• Consider making vaccination a condition for new hires – if, as a condition of employment, the employee agrees to get the COVID-19 vaccine once available, then there is no risk of the employee claiming that the employment contract was substantially changed at a later date.
• Exceptions for human rights objections – employees may refuse vaccination if that refusal is based on a protected ground under human rights legislation, such as religion or creed, sex (due to pregnancy) or physical disability (autoimmune disorder or allergic to vaccines). It is important that any workplace policy requiring vaccination include exceptions for employees who have human rights-based objections. Such employees should be accommodated, but only to the point of undue hardship. These exceptions would not excuse employees who simply have a general distrust of vaccines.
• Privacy considerations – even requesting confirmation that an employee has been vaccinated may be considered a request for personal information. Therefore, it is important to include in your policy the following:
  • authority for collection;
  • statement of purpose;
  • statement of whether a vaccination certificate will be required; and
  • a statement on storage, sharing and destruction of personal information.
• Adjust the policy – employers should be in tune with public health recommendations, and be willing to modify their policies to correspond with the current risk. When doing so, employers should ensure that each modification is clearly communicated to the employees.

There is certainly no “one-size-fits-all” approach to workplace vaccination policies that is guaranteed to be risk-free. Rather, each policy should be tailored to your individual workplace. We encourage you to consult our experienced team of labour and employment lawyers for all advice related to workplace policies.

¹ Jessica Wong, “Students burnt out by pandemic learning push more universities toward longer winter breaks”, CBC News (November 26, 2020), online; see also Tanya Grant, “‘Verge of burnout’: COVID-19 a factor for universities, faculty in contract talks”, CBC News (October 19, 2020), online.
² John Paul Tasker, “Canada on track to receive 36.5 million doses by July”, CBC News (March 10, 2021), online.
³ Government of Canada, “Janssen COVID-19 vaccine: What you should know”, Government of Canada (March 12, 2021), online.
⁴ Government of Canada, “Pfizer-BioNTech COVID-19 vaccine: What you should know”, Government of Canada (January 8, 2021), online.
⁵ As of the date of composition of this article provinces in Canada have suspended the use of the AstraZeneca COVID-19 vaccine as a result of the risk of a rare but serious condition called vaccine-induced thrombotic thrombocytopenia. Information on second doses for AstraZeneca recipients will be forthcoming according to Health Minister Patty Hajdu. See, Hajdu says information on second dose for AstraZeneca recipients coming, CBC News, (May 21, 2021), online.
⁶ Radio Canada International, “Many nursing home workers haven’t consented to COVID-19 vaccine, association says”, Radio Canada International (March 8, 2021), online.