COVID-19 Vaccine Policies

October 18, 2021

Nancy Shapiro^*

What is the hot issue in every workplace right now?  Vaccine policies of course.

We have yet to see a court or administrative tribunal definitively answer whether vaccine policies violate health privacy laws or employee privacy generally or whether an employer’s implementation of these types of policies constitute constructive dismissal and/or a form of workplace harassment.  The Ontario Human Rights Commission’s September 2021 policy statement which confirms the Commission’s view that policies mandating and requiring proof of vaccination in the workplace are generally permissible under the Human Rights Code provides some indication of how these policies will be viewed by the courts and administrative tribunals but uncertainty remains.

Notwithstanding this uncertainty, many employers have already implemented vaccine policies in an effort to reduce the risk of COVID-19 transmission and infection in their workplaces while many others are in the process of doing so. It is difficult to argue against the compelling health and safety reasons being relied upon for their introduction into any workplace. In some industries employers are actually required by law to implement a vaccine policy in order to comply with recommendations from the Province’s Chief Medical Officer of Health.

There is no one size fits all vaccine policy. The ingredients in any workplace policy will depend on a variety of factors including the size of the organization, the operational needs, the type of industry and whether there are any actual applicable legal requirements. Before implementing a vaccine policy in the workplace, Employers should consider the following:

Is a vaccination policy required by law? If so, what are the current requirements?

Is some or all of the workforce currently working remotely or is in-person workplace attendance on the horizon for some or all employees? Differently situated employees may require differing policy approaches and any policy set out when in-person attendance will be expected and whether in-person attendance will require mandatory vaccination or testing.

What is the policy approach?

• No requirement to vaccinate but encourage vaccination and require compliance with public health recommendations and any other legal requirements that may affect from time to time?

• No requirement to vaccinate but encourage vaccination and require compliance with health and safety protocols that exceed current public health authority recommendations (ie. mandatory masking in the workplace even if social distancing can be maintained)?

• Mandatory vaccination or termination of employment?

• Mandatory vaccination or regular interval testing as an alternative to vaccination and, if so, what type of test, how often will testing occur and who will pay for it?

• Will unvaccinated employees engaging in interval testing be required to complete a mandatory education session on vaccine efficacy and safety?

If a mandatory vaccination requirement policy is going to be implemented, Employers should build in an appropriate and reasonable time frame for compliance and also clearly set out how an employee’s vaccination status will be verified. For example, will the policy require employees to produce and file a copy of their vaccine receipt or will the policy simply require them to show their vaccine receipt to a designated employer representative one time? Will the policy require employees to sign a formal written attestation confirming their vaccine status or will the policy allow employees to verify their vaccine status by way of a simple and informal verbal and/or email confirmation? Whatever the approach, it is important to keep in mind that this is personal health information that Employers must be properly safeguarded from unauthorized disclosure and/or access.

Again, if a mandatory vaccination policy is going to be implemented, the policy must include a process whereby employees can communicate a request for an exemption based on legitimate medical and/or other human rights based reasons in order to ensure compliance with the Human Rights Code.

Finally, any vaccine policy should contain express language that confirms the policy may be subject to change as required in order to ensure it continues to meet its stated objective. This language will be especially important if and/or when vaccination boosters become a reality.

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