Mandating Employee COVID-19 Vaccinations
Vaccination Policy Updates
August 22nd, 2021
The topic of workplace vaccination as it relates to employment policy has long been based on achieving a balance between workplace safety, employee privacy, and human rights protections.
This past week, policies set by multiple levels of government have indicated a shift in that balance has taken place, allowing for some expansion of employer powers in placing health and safety above employee privacy.
As governments begin to implement mandatory vaccination policies and practices for their own workers and in several other industries, they are also establishing precedents for broader workplace policy. Based on these new developments, what is considered to be acceptable/ best practice in mandating employee vaccination has slightly changed.
The following is a summary of the updated policy/ practice recommendations for employers. Please note this information is not necessarily applicable to unionized environments.
1. Requesting Employee Vaccination Status.
Previously, (most) employers did not have the right to require employees to disclose their vaccination status, as this was considered to be ‘personal medical information’, and off limits to employers. Based on the recent changes in policy direction however, it can be reasonably presumed that vaccine status is now considered acceptable information for employers to request, in the context of an overall workplace vaccination policy.
2. Mandating Employee Vaccinations.
It is still best practice to encourage vaccination rather than require it of employees in most industries, where employers are reasonably able to protect staff via the measures they have been using throughout the pandemic. The legal community is divided on this topic, and until either the government issues clear instruction to businesses, or until court rulings on employee claims begin to be issued, it will likely remain so.
The legal community is divided on this topic, and until either the government issues clear instruction to businesses, or until court rulings on employee claims begin to be issued, it will likely remain so.
If an employer believes it is necessary to implement an employee vaccination requirement for their workplace, the following very important considerations should be kept in mind:
Exceptions must be provided for employees who are medically unable to receive the vaccine, and also potentially for those who request exemption based on religious grounds.
Determine how information will be gathered –if you will require proof of vaccination or solely an attestation from employees.
Create detailed protocols and for employees who choose not to disclose their vaccination status and/or for employees who are not vaccinated (and apply the protocols consistently).
Implement an educational requirement for employees who choose not to receive the vaccine- examples might be watching a video or webinar as to the science behind vaccines and their importance in a pandemic.
3. Protocols for unvaccinated employees and/or those who do not disclose vaccination status.
If an employer does choose to implement a mandatory vaccination policy, they must also create detailed protocols for any employees who remain unvaccinated. Also, it may be necessary to make separate provisions for employees who are medically ineligible, to ensure you are not creating a situation where a claim of discrimination could arise.
(Employers must ensure that staff members who have legitimate exemptions, are not subject to “any form of unequal treatment that results in some form of disadvantage”. This is the wording of the law, however exactly how it will be interpreted/ applied in this scenario is yet to be determined.)
Protocols may include requiring unvaccinated employees to: wear masks while in the workplace, maintain physical distance from other employees, perform weekly rapid COVID-19 testing, work exclusively from home rather than in the office, etc. At this time it is not recommended to enact disciplinary action against employees who choose to remain unvaccinated (healthcare workplaces may be an exception).
Vaccine policy is a challenging topic to navigate; if you have questions about drafting COVID-19 and vaccination policies for your business, we would be pleased to provide a consultation.
Please note, recommendations as it relates to this topic may change; this information is considered accurate as of August 22nd, 2021.
*Disclaimer: this article is not intended to offer legal advice or recommendations to any specific employer, industry or business. For advice relevant to your particular business circumstances, please contact us.