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An end to vaccine mandates? Considerations for employers

Mark Tector and Will Wojcik

On February 23rd, 2022, the Government of Nova Scotia announced that it will remove all public health restrictions by March 21, 2022, putting an end to approximately two years of mandatory restrictions. The decision is aligned with several other provinces that have announced similar timeframes for the removal of all restrictions, marking a new phase in the pandemic response strategy, characterized as “living with COVID”.

The announcements are cause for optimism that workplaces can start to return to pre-pandemic operations. However, the twists and turns of the pandemic have been difficult to predict with any certainty and unfortunately COVID-19 has not gone away. Employers must continue to implement workplace measures that comply with their Occupational Health and Safety (“OHS”) obligations to protect their employees and customers. Below we address some of the issues which employers are facing in this new phase of the pandemic and the impact on mandatory workplace vaccinations.

Does the removal of public health restrictions affect employers’ vaccine policies?

The removal of public health restrictions, including the vaccine passport system for discretionary activities, does not necessarily mean employers must discontinue their vaccine mandates.  Many employers introduced mandatory vaccination policies against COVID-19 in light of their legal responsibility to identify potential workplace hazards and to take every reasonable precaution to protect the health and safety of employees in accordance with provincial OHS legislation. This requirement exists irrespective of public health restrictions. However, what is considered a reasonable precaution in the circumstances is directly related to the severity of the hazard and advice of the applicable public health authority. This means that as the risk and severity of COVID-19 increased, so did the justification for strict workplace measures like mandatory vaccination.  Similarly, as we move toward “living with COVID”, existing safety measures may need to be updated, which may include the eventual removal of vaccine mandates or a more flexible policy which enables employers to pivot quickly if a new COVID-19 variant emerges.

Employers should consider the following factors when determining the risk posed by COVID-19 in their respective workplace, and the changes they will need to implement in relation to their safety protocols, including any vaccine mandate:

  • What are the current public health requirements and recommendations in your province? Employers will have to meet the minimum requirements, but may also need to consider the recommendations and even decide to impose additional safety requirements, depending on their workplace.  Provided it is reasonable, including in relation to the nature of the specific workplace, employers are not prohibited from imposing a safety standard that is higher than the public health requirements or recommendations.
  • Do you employ or work closely with vulnerable populations, which would justify stricter safety measures?
  • Do employees work in close proximity to each other, or with the public, which would justify stricter safety measures?
  • What proportion of your work force is vaccinated (if the data is available)? A highly vaccinated workforce may justify less strict safety measures.
  • Can you implement effective precautions other than mandatory vaccination?

Practical considerations  

With the above context in mind, there are also some practical steps to consider while reviewing existing policies:

  • Assessing the risk and appropriate precautions to prevent the spread of COVID-19 in your workplace should be completed in accordance with existing OHS policies, through OHS committees or representative(s), as applicable, and with regard to applicable OHS legislation.
  • Employers with employees on unpaid leaves or layoff (because of their refusal to comply with vaccination mandates) should consider if/when these employees could be recalled to the workplace, and if so, under what circumstances. Employers will have to consider whether alternative OHS measures, such as masking, distancing, and testing (if available), could be put in place.
  • Employers should also consider implementing new and more dynamic policies to address pandemic risks going forward (e.g. perhaps modified to a “Pandemic Response” policy which can be invoked in the case of future outbreaks). Unionized employers may seek to negotiate terms within their unions, including in relation to vaccination.

Although government restrictions are being removed, the risk of COVID-19 infection in the workplace remains an OHS hazard. Employers should avoid wholesale removal of policies and instead take a measured and phased approach to easing their own restrictions in a manner that is consistent with their OHS obligations and reflects the circumstances of their respective workplaces and businesses.

We encourage employers to seek legal advice from our team as they navigate through the ever-changing COVID-19 landscape.


This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Labour and Employment group.

 

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