Implementing a COVID-19 Vaccine Policy in the Workplace

What employers should know before implementing a COVID-19 vaccine policy

Background. 

Mandatory vaccination policies trigger competing issues: in aggregate they may be necessary to protect the health of a majority of workers, but on an individual level a vaccination is a personal and private decision. With COVID-19 vaccine deployment well underway in Newfoundland and Labrador, employers are wondering about the implementation of vaccine policies for physical workplaces, and what concerns they may face for doing so.

This eCaseNote intends to help address some outstanding questions related to the implementation of COVID-19 vaccine policies, and help employers navigate this process.

Can employers unilaterally implement a vaccine policy? 

From the information available to us now, it is likely that decisions made by Canadian employers to implement mandatory vaccination policies in the workplace will be considered reasonable and necessary occupational health and safety precautionary measures.

However, policies should be flexible enough to accommodate workers as necessary and should remain live to the ever changing COVID-19 landscape as new information becomes available about the effectiveness of the vaccines – including any new information regarding the spread of the virus by vaccinated individuals.

What should a vaccine policy look like? 

  Any vaccine policy introduced into your workplace should be based on a fact-driven assessment of the operations of your business to ensure it is reasonable and necessary as a bona fide health and safety requirement.

These policies should be clear and unequivocal, and should be communicated to affected employees prior to implementation, including sharing information on what will be the disciplinary consequences of non-compliance.

As a best practice, employers may want to introduce and clearly communicate this policy in writing to all employees and consider providing additional information and resources on COVID-19 vaccines to promote informed individual decision-making.

Should an employee be terminated for not being vaccinated? 

The requirement to be vaccinated to attend work, while it might be reasonable and justified, is the unilateral imposition of a contractual employment term. Ramifications for failing to accept it should be used sparingly and only when necessary and must be able to be defended as a required condition of employment. This analysis will be different for each workplace and each employee. If the employee is public-facing to a vulnerable population, the requirement is more defensible as a condition and a range of discipline up to and including termination might be appropriate. If the employee has a position that can be performed without interaction with others, it may not be.

Further, terminating employees for failing to be vaccinated could be in breach of provincial human rights legislation, and open up employers to liability. If an employee refuses vaccination for reasons tied to a protected characteristic, like their religious faith or a disability, terminating them could be understood as discriminatory action contrary to their human rights.

Employers should seek to reasonably accommodate employees who refuse to be vaccinated, and particularly those refusing based on individual characteristics that are protected from discrimination under the Human Rights Act. Where it is not possible or practicable, employers should seek legal advice regarding whether the termination is with or without cause, and the appropriate notice periods or pay in lieu of notice periods that might be appropriate.

How should non-vaccinated employees be accommodated?

Under the Human Rights Act, employers are required to accommodate for human rights-related needs to the point of undue hardship; this includes providing support or making alternate arrangement for the person seeking the accommodation.

A requirement to accommodate an employee’s needs contains both a procedural and substantive component. Procedurally, employers are required to conduct an “individualized investigation of accommodation measures and an assessment of an employee’s needs” while substantively, an employer must “make modifications or provide the accommodation necessary (short of undue hardship) in order to allow an employee with [what they need] to participate fully in the workplace”.

Further, employers must be aware of any conditions granted to their employees through their individual or collective employment agreements, and ensure any contractual obligations are met in determining how non-vaccinated employees must be accommodated in their workforce.

As a best practice, employers may wish to design their COVID-19 policy with accommodation in mind. For example, this may be barring those who are unable or unwilling to receive a vaccination from sitting in a shared lunchroom or other shared workspaces or allowing them to work remotely during COVID-19 outbreaks.

What are the privacy considerations of a COVID-19 vaccine policy?   

The evolution on privacy law and COVID-19 vaccination will be interesting to watch.

Employers should be aware of their requirements to protect the privacy of their employees while implementing a COVID-19 vaccine policy, or they open themselves up to potential liability if the privacy rights of their employees are breached.

As a best practice, employers should collect and maintain the minimal amount of personal information needed to implement their policy, share the information with only those who need to know for to enforce the policy, and protect and store the information in a secure environment like a password-protected encrypted server or a locked file cabinet. Further, personal information should be stored only for as long as necessary, and in cases when an employee no longer works for an organization, the information should be immediately destroyed.

Where privacy matters become more complex is regarding the dissemination of information to adjacent employees. If an employee is refusing to be vaccinated, it is possible they will pose a risk to other employees, and an employer may feel pressure to share information about such a risk. Employers should consider such scenarios up front, and account for them in any policy developed.

The comments contained in this eCaseNote provide general information only and should not be construed as legal advice or opinion. For more information or specific advice on matters of interest, please call our offices at (709) 579-2081.