Vaccination Policy & Enforcement
As Ontario slowly gets through the pandemic, the most common question from employers is regarding vaccinations.
In short: if an employer wants to instate a forced vaccination policy, it must correspond with the demonstrable high risk of transmission of COVID in that workplace, overruling the use of other alternative solutions. Absent such a strong and clear link, a forced vaccination policy is difficult to enforce. However, employers can implement a mandatory vaccination policy with reasonable exceptions built into the policy. Such a policy would request employees show proof of vaccination; if they cannot do so based on a valid reason (disability or religion), they must otherwise comply with alternative policies (such as mandatory PPE use, enhanced screening, adjusting their working conditions, or work-from-home). If an employee outright refuses to comply with the entire policy, they may face discipline up to and including termination.
Vaccination of employees against infectious diseases protects:
- Employees where exposure to infectious diseases is a regular occupational hazard, or during an outbreak or pandemic.
- Third parties where non-employees, like patients or customers, are at risk of exposure to infectious diseases carried by employees.
Any vaccination policy is part of a larger workplace program for overall workplace safety. A policy on preventing the spread of infectious diseases is usually only enforceable where it:
- Is based on evidence demonstrating a serious risk of infection in the workplace, and the effectiveness of a vaccine or alternative measures in preventing the spread of infection; and
- Achieves a balance between workplace safety, employee privacy, and human rights protections.
Canadians already rely on vaccines to guard against a variety of infectious diseases, and certain employees are legally required to obtain up-to-date vaccines. As well, Ontario’s public health legislation permits public health authorities the discretion to order mandatory vaccination or other actions to control outbreaks of communicable disease, and they have used it once to force a flu shot in a long-term care home in 2005.
Employers are justified in removing employees from the workplace where those employees do not meet legislated mandatory standards or public health orders. Judges and adjudicators are likely to treat employment contracts as secondary to legislated public health obligations. In other words, the law (through any government or legislation) will supersede or enhance any employment contract without the employer’s or employee’s agreement. But as of yet, the government has not forced the vast majority of employees to obtain vaccination against COVID. It remains a choice.
How can an employer protect its workforce as it is legally obligated to do?
Workplace Health and Safety
Every employer in Ontario has the legal obligation under the Occupational Health and Safety Act RSO 1990 C.O.1 to take all reasonable steps to protect workers in the workplace, including from infectious diseases.
Reasonable steps to guard against workplace infectious disease hazards will look different in each workplace. The law was intentionally written broadly so that the burden is placed on employers to ensure the steps taken in their operations are reasonable for their workplace. Some reasonable steps may include requiring the use of masks or other personal protective equipment (PPE), or it could include, where appropriate, employee vaccination.
In developing infectious disease protocols, some industries follow the guidance issued by public health authorities or industry organizations. In Ontario hospitals, for example, their policies on vaccination currently include the following:
- Strongly encourage employees to receive an annual influenza vaccination, and
- Require proof of immunity or proof of vaccination against measles as a condition of employment.
We also take the time to remind employers that any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.
The case law is clear that any enforceable health and safety policy that intrudes on bodily integrity must balance employee interests and workplace safety. Such a balance involves:
Demonstrating the policy’s necessity with evidence of an infectious disease hazard and the efficacy of the policy’s requirements
- Providing for alternatives to vaccination where doing so is reasonable and does not compromise the safety of the workplace
- Requiring disclosure of only the minimum amount of employee medical information required, and
- Accommodating medical conditions or religious objections that prevent vaccination, to the point of undue hardship.
In addition, the development and implementation of a vaccination policy should be informed by evidence of both:
- A realistic infection risk in the workplace.
- The effectiveness of the policy’s requirements.
Absent a legislated requirement, employers must justify a mandatory vaccination policy by demonstrating an extraordinary safety risk that can only be addressed by compromising an employee’s personal autonomy – their bodily integrity. A policy that imposes a negative consequence for failure to show proof of vaccination, or otherwise participate in an onerous alternative, will likely not be upheld if the employer cannot prove the necessity of the policy.
For that reason, avoiding mandatory vaccinations and instead implementing a “Vaccine or Other Reasonable Alternative” policy (while still achieving the employer’s goals) should be strongly considered.
Alternatives to Vaccination
An employer may choose to avoid a mandatory vaccination policy and instead include alternatives to vaccinations in their policy. This would necessarily allow for:
- Accommodation of employees who cannot receive vaccinations for reasons protected by human rights reasons.
- Employees to make their own decisions regarding their body and medical treatment.
A choice between a vaccination and an alternative (like using PPE, mandatory work-from-home, or accepting temporary suspension) has been described in case law as a “choice with consequences”. In other words, employees may decline vaccination but must still participate in risk-reduction measures to ensure the safety of the workplace.
A reasonable vaccination policy may pre-emptively include the following measures to allow employees to make a concerted decision in how they want to continue working:
PPE or Other Transmission Reduction Measures at the Workplace. The alternative mandatory policies could be any combination of the following:
- Mask use (double-layered mask, N-95 masks)
- Other PPE use (face shield, gowns, gloves)
- Continuous and/or enhanced pre-employment workplace screening for symptoms, close contact, declaration of co-residents’ symptoms (as is currently being done in all Ontario workplaces)
- Enhanced cleaning of their workspaces
- Physical distancing from all other individuals in the workplace
- Exclusion from certain activities in the workplace (denied entry to in-person meetings, lunchrooms, invitations to social events are virtual only).
- Increased use of leave of absence or sick leave
Forced Work-From-Home (WFH). An alternative to the above may simply be “Vaccine or Work From Home”.
The pandemic has shown employers that some employees can be just as effective and productive by working from home, through harnessing new (or old) technologies and adapting to a more virtual workplace and world.
A reasonable vaccination policy may permit employees to continue to WFH if they have not been vaccinated. Where employees can effectively WFH and all parties agree to the circumstances, all is well. Where an employee may WFH but may not be able to complete all of their job duties, the rationale behind their decision is key:
- Where the reasons for not obtaining a vaccine relate to a valid human rights ground (disability or creed), then the employee is entitled to reasonable and temporary accommodation (discussed below). This may include modified job duties and/or modified hours of work. This may also be accompanied by reasonable and temporary modified compensation, hours of work, and benefits (as part of the accommodation process).
- Where the employee’s reasons for not obtaining a vaccine do not relate to a valid human rights ground, or the employee does not reasonably disclose their rationale for not complying with any of the employer’s policies, the employer can insist that the employee either show proof of vaccination or continue to work from home under reasonable but altered conditions (job duties, compensation, hours of work, benefits). Should the employee continue to disobey the employer’s reasonable policy, further discipline (suspension or termination) may be required.
Temporary Leave of Absence. In certain scenarios, there may be no safe way to allow employees to continue working if they are unvaccinated. In such situations, an employee who is concerned or uncontrolled risk of infection might be excluded from the workplace (through a leave of absence or suspension) until the emergency is over.
First, as of the publication of this document, Ontario’s Employment Standards Act permits an employer to place an employee on an unpaid leave of absence where
- the employee will not be performing the duties of their position, and
- the employer places the employee under a direction in response to the employer’s concern that the employee may expose other individuals in the workplace to COVID-19. Employees can take this leave in part days, full days or periods of more than one day. For such a situation, the duration of the leave may be weeks or months, so long as the valid “concern” is present (and so long as the legislation stays on the books). The employee is entitled to have their benefits of employment continue during the leave. Whenever the “concern” is concluded, the employee’s normal obligations to be at work resume, and they are entitled to their same or similar job back.
If an employee is unable to comply with a vaccination policy (or another policy) for a reason protected by Ontario’s human rights legislation, the employer has an obligation to accommodate that employee (and show that they have attempted to accommodate that employee).
For example, an employee might refuse or be unable to obtain vaccination due to:
- A valid disability or condition which prevents them from receiving a vaccination, or
- A valid religious belief which forbids receiving a vaccination.
In these circumstances, the employer must explore reasonably alternative solutions, which may include alternative infection control measures or alternative duties that allow the employee to continue working.
The employer’s obligation to provide accommodation ends at the point of undue hardship. While undue hardship is difficult to prove, a serious and genuine compromise to workplace safety is one such limit (the other important limit is the cost).
If an unvaccinated employee cannot work safely even with reasonable accommodation, the only alternative may be an unpaid suspension or a termination (through frustration of contract), depending on the nature of the hazard and the particular facts. To justify such drastic action, the vaccination and its accompanying policy must be a bona fide occupational requirement (also known as a BFOR). This matter has been litigated in court numerous times and we can assist in helping to determine whether a policy or requirement is a BFOR.
We include the word “valid” before an employee’s reason for not following a vaccination policy. This is because accommodation is only required where the employee can prove a valid human rights basis for objecting to a certain policy. This would apply equally to mandatory vaccination policies. For example, if an employee has a valid medical condition which requires accommodation from the vaccination policy, they must show reasonable proof of the impact of their limitations on job duties and compliance with the policy, and the prognosis of said limitations. (Remember: evidence of an employee’s diagnosis is usually not required or reasonable for the employer to request).
In another example involving creed/religion, an Ontario paramedic’s 2011 objection to vaccination on the basis of “creed” was rejected by Ontario’s Human Rights tribunal when it was apparent the employee’s objection was not based on a “sincerely held religious belief”. Rather, the employee disagreed with the policy, and simply disagreeing with the safety or efficacy of a vaccination is not a valid human rights ground (See the case of Ataellahi v. Lambton County (EMS), 2011 HRTO 1758 at https://canlii.ca/t/fn7cs).
Employers should also keep in mind that all accommodation is by nature temporary. A “permanent accommodation” may simply be a permanent change to an employee’s terms of employment. Where all parties are in agreement, such a change may be welcome. However, if the employer is providing the accommodation to the employee, but the reasons for providing the accommodation have not changed in the time that previously was the “foreseeable future”, the employer may not be required to continue to accommodate the employee. Remember, an employer must provide reasonable accommodation to the employee so long as the employee can return to their regular job duties in the foreseeable future, to the point of undue hardship.
Finally, neither the employee nor employer are entitled to their perfect accommodation – the standard to meet is “reasonable” accommodation, based on whatever is reasonable for that employer and employee.
In designing and implementing any vaccination program, employers should:
- Prepare a reasonable vaccination policy that balances key interests but also reasonably protects health and safety, based on your individual workplace. Document your reasons for instating the policy.
- Involve the joint health and safety committee or representative in preparing or reviewing the policy before it is finalized.
- Consider giving paid or unpaid time off work to permit an employee to obtain a vaccine.
- Consider making vaccination (or participation in alternatives) a job requirement from the beginning of the employment relationship. Build the vaccination policy and alternatives directly into the employment agreement (along with any other important policy). Doing so may help avoid later disputes over enforceability of policies.
- Limit collection of medical information to whatever is reasonably necessary (like their immunity or vaccination status, and any reasonable information required during the accommodation process)
- Ensure employees receive training on a policy before it is implemented, and allow time for employees to ask questions and understand a policy before it is implemented.
- When confronted with an employee’s refusal to receive a vaccine an employer should:
- Prioritize the safety of the workplace,
- Assess the reason for refusal, and
- Respond proportionally and reasonably
Reach out to Jonathan N. Borrelli (firstname.lastname@example.org), Ljubica Durlovska (email@example.com) or Sarah Mills (firstname.lastname@example.org) for help with preparing or implementing a vaccination policy at your workplace.
www.kmblaw.comThis article is provided for general information purposes and should not be considered a legal opinion. Clients are advised to obtain legal advice based on their specific situations.