Protecting workers and employers: COVID-19 vaccination and the workplace

It has been approximately six months since we first discussed the prospect of COVID-19 vaccination. Since then Canada has seen widespread vaccine uptake. As of June 26, 2021:

• 76.58% of the population 12 and over, or 25,424,316 people, have received at least one dose of the five available COVID-19 vaccines; and
• 31.07% of Canadians 12 and over are fully vaccinated.

As vaccines have become available to the general population it looks more and more like the end of the pandemic is in sight. The question then becomes, if COVID-19 vaccines are a key component of the return to normalcy, can Canadian employers demand vaccination of their employees?

The simple answer is, absent government intervention, likely “no”. However, the myriad of provincial and federal regulation in respect of workplace safety, human rights, and privacy demand that we take a deeper dive into the interplay between these competing forces in the context of employee vaccination status. The answer to our most frequently asked question depends upon the consideration of numerous factors, ‎including (1) the nature of the workplace; (2)  OHS requirements; (3) the applicability of ‎privacy legislation; and (4) the potential impact of human rights.‎

Vaccination in the workplace

All provincial and federal governments have broad powers during a public health ‎emergency to mandate proactive measures to safeguard the population, including ‎requiring vaccination against transmissible diseases. However, all governments have ‎recognized the controversy associated with such a decision, and have chosen, instead, ‎to defer making vaccinations mandatory.‎

In most Canadian provinces and territories, governmental action has been limited to mandating, pursuant to employment ‎standards legislation, an employer paid leave to permit employees to be vaccinated. ‎Because there is generally no legislated requirement for an employee to be vaccinated (although in certain workplaces where employees interact closely with coworkers or ‎patients/residents, public health orders may establish unique considerations requiring ‎inoculation against COVID-19), each ‎employer must make an informed decision as to how to approach this issue and the vast majority of employers will need to ‎determine whether vaccinations are a workplace requirement  by considering:‎

Occupational Health and Safety (OHS)

OHS laws require the employer to provide a safe workplace which  includes ‎protecting employees from  airborne pathogens. The employer is obliged to take ‎reasonable steps, and in light of the pandemic, this might include vaccination. Bear in mind, however, that there may be other alternatives to maintaining a safe workplace ‎without resort to mandatory vaccination.‎

Privacy ‎

In some provinces, such as Alberta, British Columbia and Québec (see discussion ‎below), an employer can collect personal information about employees if it is ‎reasonable to do so, and the privacy of such confidential information is protected.‎

Human Rights

An employer rule requiring vaccination must not contravene human rights legislation and standards and must take into account the employer’s duty to accommodate those employees that are unable to be vaccinated on the basis of a protected ground such as physical disability or religion.

With these factors in mind we answer the most frequently asked questions regarding mandatory vaccinations in the workplace, starting with Canada’s common law provinces and ending with the province of Québec:

1. Can an employer make vaccination mandatory?

   Plausible, with caution. The onus rests with the employer to justify mandatory vaccination. In many workplaces, it may not be possible to justify a mandatory rule requiring vaccination. However, where the health and safety of the workplace demands such intervention, mandatory vaccination may be appropriate (and, indeed, necessary). In all cases, the employer should consider measures short of mandating the vaccination of employees by considering remote working alternatives or continued use of masks and social distancing. Where an employer decides to make vaccination mandatory, the employer should (a) ensure that the employees who are unable/decline to be vaccinated on the basis of a human rights protected ground are not discriminated against and (b) consider the appropriate recourse for employees who decline to be vaccinated for reasons that are not related to a human rights protected ground.

2. Can non-unionized employers encourage vaccinations?

   
   Yes. Some non-unionized employers are encouraging employees to get vaccinated by providing a “vaccination bonus” such as gift cards or other incentives. Where permitted, some larger employers are hosting workplace vaccination clinics to make it more convenient for the employees to be vaccinated. Where awards are given for vaccination, the employer needs to ensure that the employees who are unable/decline to be vaccinated on the basis of a human rights protected ground are not discriminated against.

3. Should an employer encourage vaccination?

   
   Yes. Employers are obliged to encourage safety measures that are appropriate ‎for their workplace. One of those safety measures is vaccination, but other safety ‎measures (such as masking, social distancing, hand hygiene, etc.) need to be encouraged and used as a part of an overall approach to keeping the workplace ‎safe.‎

4. Does an employer have a duty to accommodate employees who are unable or decline to be vaccinated?

   
   Yes. If the reason that the employee is unable to be vaccinated is due to a human rights protected ground (example, an underlying health condition or disability) then this will trigger an obligation to accommodate the employee to the point of undue hardship. Undue hardship is considered on a case by case basis, and, subject to the applicable terms and conditions of employment, may include subjecting the employee to non-punitive measures including temporary assignment to other duties or to another department, moving the employee’s office or work area, requiring the employee to accept a staggered shift to ensure physical distancing, permitting remote work without a reduction in pay, or, subject to applicable privacy and human rights laws, requiring the employee to undergo regular COVID-19 tests.

5. Can an employer ask employees if they have been vaccinated or require proof that they have been vaccinated?

   
   Yes, if it is reasonable to do so. However, as discussed in greater detail, below, any collection, use or disclosure of personal information must only be for the purposes that a reasonable person would consider appropriate in the circumstances and it must be proportionate to ‎that purpose. The employer also needs to safeguard the collected information from unauthorized disclosure. In provinces where the employer’s collection or use of personal information is governed by privacy legislation, then all statutory requirements must be followed.

6. Québec

Many of the answers provided above apply equally to the province of Québec. As is the case elsewhere in Canada, in Québec there are likely only very limited circumstances in which an employer’s mandatory vaccination policy may be justified. In most cases, the nature of the workplace will be the driving factor.

For example, effective April 9, 2021, a Québec Ministerial Order requires employees in emergency units, intensive care units, residential and long-term care centres to provide proof of a COVID-19 vaccination or undergo no less than three COVID-19 tests per week and provide the results to their employer. Similarly, we anticipate that in congregate work settings such as meat packing plants, warehouses, and construction an employer’s mandatory vaccination policy may also be upheld by Québec courts as necessary and reasonable.

In the majority of other workplaces, however, employers will not be able to insist on mandatory vaccination, particularly where other mitigation factors including masks, distancing, physical barriers and remote work are effective to protect workers and others. Québec’s Charter of Human Rights and Freedoms and Article 11 of the Civil Code of Québec protect individuals from involuntary vaccination by requiring an individual’s consent. Furthermore, as discussed above, Québec employers have a duty to accommodate employees who are unable to be vaccinated for reasons related to a protected ground of discrimination under the Québec Charter of Human Rights and Freedoms, the limits of which must be assessed on a case-by-case basis.

A deeper dive: Employee privacy

Employers in British Columbia, Alberta and Québec, as well as employers who are federally regulated, are subject to the requirements of privacy legislation which governs the collection, use, and disclosure of the personal information of their employees.

Personal information is broadly defined and includes an employee’s vaccination status. On May 19, 2021 the Federal, Provincial and Territorial Privacy Commissioners issued a joint statement regarding the public and private use of vaccine passports (i.e. submitting proof of vaccination in exchange for access to spaces, goods or services). Although recognizing that seeking proof of vaccination status “may offer substantial public benefit”, the Commissioners take the position that vaccination passports are also “an encroachment on civil liberties that should be taken only after careful consideration”.

Although privacy legislation in Alberta and British Columbia, for example, permits the collection use and disclosure of employee personal information without consent, provided that the same is for the purpose of establishing, managing and terminating an employment relationship, absent a public health order or law requiring disclosure of vaccination status, the collection of vaccination status likely requires an employee’s voluntary, meaningful and informed consent. Employers who seek vaccination status should be prepared to provide a clear rationale for its collection, use or disclosure, and prepare themselves for refusals (as discussed above).

Furthermore, even where employee consent is obtained, the purpose for the collection of vaccination status must be reasonable (or in Québec, the collection must be for a serious and legitimate purpose) or the collection may nevertheless be unlawful. Employers who seek employee disclosure of vaccination status must carefully consider why they are looking for this information, and whether there are less privacy-intrusive measures available to achieve the stated purposes. Merely relying on workplace safety or managing client or customer expectations may not be a reasonable basis upon which to demand vaccination status, particularly where other operational controls may be sufficient. 

Once vaccination status is collected, it should only be used for its stated purpose, and should not be used for secondary purposes unless required or authorized by law or upon renewed consent from the employee. Because vaccination is personal health - i.e. sensitive - information, employers should collect only what is necessary to achieve the stated purpose (or consider not keeping permanent records at all) and should subject any such personal information in their possession or control to operational and/or technological safeguards commensurate with its sensitivity. Vaccination status should only be retained for as long as retention is supported by the purposes for collection, and should be securely disposed of once there is no legal or other purpose for retention.

Conclusion

DLA Piper’s Canadian Employment & Labour Law Service Group is regularly providing current updates and practical insights on issues affecting the Canadian workplace at this difficult time. We are pleased to offer this resource for employers, management, in-house counsel and human resources professionals across Canada who wish to stay up to date on legislative developments and best practices relating to COVID-19.

For further information about the impact of COVID-19 on the Canadian workplace, please contact any of the members of the DLA Piper Canadian Employment and Labour Law Service Group listed here.

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