May 31, 2021
For good reason, many employers are beginning to think about how their workplace will look a few months from now. They are considering how to assure employee safety and are wondering what impact the vaccination roll-out will have on masking and social distancing requirements over the summer and by early fall of 2021.
In short, we do not know. At this juncture, we can say that none of the restrictions have changed. What we have learned since March 2020 is that planning ahead for COVID-19 is challenging. Public health authorities have and will make changes to regulations with virtually immediate effect. Employers (and society for that matter) have to be agile, and adapt quickly to whatever new requirements are issued and ensure compliance.
What should we anticipate? We should anticipate that we will see guidelines as to when people can stop wearing masks and who can stop wearing them. However, according to the CDC, to what extent the vaccinated population can still spread the virus is still not fully understood. Therefore, this may not be soon. It is unlikely we will see legislation establishing mandatory vaccination here in Canada. Employers therefore wonder if they can require employees to get vaccinated. For a while, it was a clear no; vaccinations were not even readily available to most; however, now anyone 12 or older in Canada is eligible for vaccination.
It will not be that easy though. There will not be voluntary full compliance of any workforce. Expect there to be ‘anti-vaxxers’ and people with health conditions who cannot get vaccinated. Mandatory vaccination policies are a complex issue. Certainly, those who cannot get vaccinated due to medical reasons will not be forced to do so, nor can they be terminated as a result of their vaccination limitation. While anti-vaxxers may not have the same human rights-based protections, there will be cases to emerge from this issue which will address employee privacy rights, as we are dealing with private medical information and an employer’s right to collect it and maintain it, or attempt to govern an employee’s private health related decisions. Considering the appropriate policy will require a review of the particular workplace in order to make the best recommendation as to how to deal with the issue.
In the near term, while we await some regulatory guidance, do not roll out mandatory vaccination policies without legal guidance on the appropriateness of this measure for your workplace.
We recommend employers right now focus on:
- Vaccine promotion! Develop a communication strategy along the lines that the hope is that the more people who get vaccinated, the closer we may be to a mask-less, less-distanced, and yet safe life!
- Make it Easy. Provide information about how to get vaccinated as the booking system can be a minefield! Offer employees time off work to get vaccinated (in any event, they are entitled to claim it now as one of the three paid sick days recently mandated in the Province of Ontario).
- Sign-up for alerts from your local public health authority and the provincial government in order to stay up to date on these issues as soon as announcements are made.
The Employment Group at Koskie Minsky is here to assist with these complex questions and to work with you in relation to all your workforce planning needs.