As COVID-19 vaccines become widely available, and amid fears of the Delta variant and Canada’s first upswing in COVID-19 cases since the spring, Canadian employers have increasingly questioned whether they can and/or should implement policies requiring employees to get vaccinated. A recent shift in the federal government’s position on vaccine mandates has spurred lower levels of government and many federally and provincially regulated employers to implement vaccine-related mandates of their own, indicating that a trend in favour of workplace vaccination policies may be forthcoming. We have set out recent developments within Ontario below.
Federal government mandates vaccines for federally regulated employers
Recently, the federal government took its first major step in favour of mandatory vaccination. On August 13, 2021, the federal government announced that it would require vaccination for employees in the federal public service as early as the end of September, and employees working in the federally regulated air, rail, and marine transportation sectors by the end of October.
The announcement also stated that the federal government “expects” that Crown corporations and other employers in the federally regulated sectors—such as banks, radio and television broadcasting, telecommunications, and air transportation—will also require vaccination for their employees, indicating that federally regulated, private sector workplaces will also be subject to a mandatory vaccination requirement. Large, federally regulated employers such as Air Canada and all five of Canada’s major banks (BMO, RBC, CIBC, Scotiabank, and TD) have since announced plans to implement a mandatory vaccination policy for their employees.
Ontario mandates vaccine policies for high-risk settings
Following the federal government’s announcement, on August 17, 2021, the Ontario government announced that it will require employers operating in certain high-risk settings to implement vaccination policies. Within the health care sector, the Chief Medical Officer of Health has issued a directive mandating hospitals and home and community care service providers to have a COVID-19 vaccination policy for employees, staff, contractors, students and volunteers, while ambulance services must implement a COVID-19 vaccination policy for paramedics. The vaccination policy must be effective by no later than September 7, 2021. At a minimum, the vaccination policy must require individuals to provide proof of one of the following:
- Full vaccination against COVID-19;
- A medical reason for not being vaccinated against COVID-19; or
- Completion of a COVID-19 vaccination educational session.
Individuals who do not provide proof of full vaccination against COVID-19 will be required to undergo regular antigen testing.
Additionally, the Ministry of Education announced that it will introduce a vaccination disclosure policy for employees of publicly funded schools, private schools, and licensed child care settings for the 2021-2022 school year. Like the directive issued for health care employers, the policy will include rapid antigen testing requirements for staff who are not immunized against COVID-19.
Similar vaccination policies will also be implemented in other high-risk settings, such as post-secondary institutions, licensed retirement homes, women’s shelters, and congregate group homes.
Employers will be responsible for tracking and reporting on the implementation of their policies to the provincial government. At this time, no provincial directive or guidance has been issued to provide details of how schools and other employers operating in high-risk settings are expected to implement their vaccination policies. Affected workplaces should monitor developments as they progress and seek the assistance of counsel in drafting their policies.
Toronto mandates vaccines for public service employees
On August 19, 2021, the City of Toronto (the “City”) announced a mandatory COVID-19 vaccination policy requiring all City of Toronto employees to receive both doses of the COVID-19 vaccine. All employees of the Toronto Public Service will be required to disclose and provide proof of vaccination status by September 13, 2021. Employees who are not vaccinated or do not disclose their vaccination status by this date will be required to attend mandatory education training on the benefits of vaccination. Following this training, any unvaccinated employees will be required to provide proof of their first dose by no later than September 30, 2021, and proof of their second dose by October 30, 2021.
The City noted in its announcement that it will comply with its human rights obligations, and employees legally entitled to accommodation will be accommodated.
The following day, on August 20, 2021, the City’s Medical Officer of Health released a statement encouraging private employers located within Toronto to implement a workplace vaccination policy. A policy is strongly recommended to include, at minimum, the following requirements:
- Employees must provide proof of their vaccination series approved by Health Canada or the World Health Organization;
- Unvaccinated employees must provide written proof of a medical reason from a physician or nurse practitioner that includes whether the reason is permanent or time-limited; and
- Unvaccinated workers must complete a vaccination education course on the risks of being unvaccinated in the workplace.
Takeaways for Employers
These recent announcements from all three levels of government, made in fairly quick succession, indicate a growing trend in favour of robust vaccination policies in the workplace. As governments lead by example, many federally and provincially regulated employers have announced vaccination policies of their own. However, the question that still remains is what limits the law will place on an employer’s ability to enforce the contents of such policies, including a requirement to be vaccinated.
When drafting a vaccination policy, employers should carefully tailor the requirements they impose on unvaccinated employees based on the level of COVID-19-related risks in their particular workplace. Employers should also be cautious of imposing stringent requirements under their vaccination policies, as such requirements can potentially constitute a substantial unilateral change to the terms of the employees’ employment, otherwise known as constructive dismissal. An employee who has been constructively dismissed will be entitled to treat their employment as having come to an end and to receive their termination entitlements. Similarly, unionized employers should carefully review all applicable collective agreements, and ensure that they comply with any requirements to consult the union.
Employers must also carefully consider their duty to accommodate employees who cannot get vaccinated for reasons relating to a protected ground under human rights legislation, such as disability or creed. Employers should ensure that their policy provides that such employees will be provided with reasonable accommodation up to the point of undue hardship.
In determining the appropriateness of a workplace vaccination policy, courts will consider and balance a myriad of competing interests. In addition to human rights, other interests engaged by a vaccination policy include privacy and workplace health and safety. While the outcome of such balancing acts will always be context-specific, the recent government announcements may tip the scales in favour of the employer and public interest in mandatory vaccination. This, in practice, may lessen constructive dismissal-related risks for employers with respect to the implementation of vaccination policies.
Given that COVID-19 related measures and requirements are subject to constant change, employers should continually monitor for changes to the applicable requirements and public health guidance. As always, we will post further updates as they become available to keep you In the Know.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.