September 7, 2021
To date, there has been very little caselaw dealing specifically with the implementation of mandatory COVID-19 vaccination policies in the employment context. In the circumstances, employers and employees alike have no choice but to navigate the complex legal issues that arise from any attempts to reduce the risks associated with COVID-19 transmission and infection in the workplace without the benefit of any immediate guidance or clarity from the courts and/or administrative tribunals. This navigation will require, at a minimum, an employer to balance its legitimate business interests and employer obligations with its employees’ rights to a safe workplace, privacy and accommodation arising from valid human rights reasons recognized by the Ontario Human Rights Code.
Based on a review of caselaw that arose from the 2003 Severe Acute Respiratory Syndrome (SARS) outbreak, mandatory drug testing and other similar situations, the following issues/concerns should be in the forefront of the minds of any employer or employee when it comes to workplace policies aimed at reducing the risks associated with COVID-19 transmission and infection in the workplace:
- Will previous successful remote work arrangements during the pandemic present a challenge to any employer attempts to now require a return to in-person workplace attendance?
- Will previous successful remote work arrangements allow an employee to successfully challenge the reasonableness of any mandatory vaccination policy an employer may seek to introduce?
- Does an employer have an actual need to implement a formal mandatory vaccination policy or does the employer already know the vaccination status of employees and already know all employees are fully vaccinated? If not, have existing COVID-19 workplace protocols been successful in reducing and/or eliminating the risk of COVID-19 transmission and/or infection in that workplace?
- Will the implementation of a mandatory vaccination policy be sufficient to meet an employer’s health and safety employer obligations or will an employer still be required to also maintain existing masking, social distancing and heightened hygiene policies in the workplace in addition to any mandatory vaccination requirement?
- Will a policy that contemplates employee voluntary disclosure of vaccination status provide an employer with the information it needs to make policy decisions?
- Will a double-barreled policy that contemplates regular interval self-administered COVID-19 testing for those individuals who are not fully vaccinated or those that refuse to disclose their vaccination status meet an employer’s workplace policy objectives? If so, who will assume the cost of any testing?
- What sort of proof of vaccination status or proof of a negative testing result will an employer accept? Is an employee attestation of their vaccination status or test result sufficient or will copies of a vaccination receipt or testing result be required? How will an employer store and safeguard that information and/or documentation from unauthorized access?
- Will any discussion of an employer’s mandatory vaccination policy with a potential new employee and/or inquiry about a potential new employee’s vaccination status at the pre-employment interview stage give rise to any human rights liability for an employer and, if so, what is the likely extent of that liability?
- Can an employer accommodate an employee who has identified an inability to comply with a mandatory vaccination and/or testing policy for valid human rights reasons recognized by the Ontario Human Rights Code or does accommodation give rise to an undue hardship?
- How will an employer manage employees who refuse to comply with a mandatory vaccination or testing policy when their refusal is not supported by valid human rights reasons recognized by the Ontario Human Rights Code? Is an employee’s refusal to comply just cause for termination or is an employer obligated to give employees who refuse to comply a paid or unpaid leave of absence and, if so, for how long?
It is important to keep in mind that regardless of what form an employer’s workplace policy approach to the risks associated with COVID-19 in the workplace may take when it is first introduced, policies are likely to require change along the way to ensure ongoing compliance with public health authority directions and/or recommendations and the prevailing science. For this reason, employers contemplating the implementation of any workplace mandatory vaccination or testing policies and employees being subjected to them should seek legal advice to ensure a complete understanding of their respective rights and obligations both now and as pandemic circumstances continue to evolve as well.