Vaccine policies are a hot topic these days.
Vaccines are the path to increased normalcy – both in our personal/social lives and at work. It’s potentially a controversial topic and one that is rife with confusion.
In a minute, we will explore the issue of mandatory vaccine policies for employees. Let’s start with a quick look at your public-facing responsibilities (applicable in some industries).
Due to governmental guidelines, there are restrictions for non-vaccinated members of the public and their access to certain businesses. If you own or operate a business that is impacted by these guidelines – for example, a restaurant – you are required to comply with the order to refuse entry to unvaccinated patrons. You are also required to see proof of vaccination before you admit entry to a patron.
That is pretty clear but was worth mentioning. The bigger questions and confusion lie in how to handle vaccinations for your employees. Are you allowed to require them to get vaccinated? What about testing? Is suggesting they get vaccinated but not requiring it a better way to go?
We, as a society, have learned to navigate the pandemic, we’ve adapted and pivoted and in most cases, been diligent about following guidelines. Now we face new challenges as we figure out how to open up safely and create a new normal.
What Does the New Normal Look Like For Employers? How Do Vaccine Policies Fit In?
Employers are required by Health and Safety legislation to take reasonable and practical steps to ensure health and safety in their workplace. Based on that mandate and on the government stance about the importance of vaccines, it looks a lot like requiring vaccines is the way to go.
So what do you do when they refuse to? Let’s take a look at the potential downside of implementing a mandatory vaccine policy.
Instituting a mandatory vaccine policy would typically mean there is a threat of action for anyone who is noncompliant. In a worst case scenario, termination would be the action.
Some potential consequences:
- Wrongful dismissal: Employees who have completed the probation period (3 months of service) must receive notice and/or pay upon termination. They may have a right to claim wrongful dismissal if they don’t receive notice and/or pay or if they feel any other aspect of the termination was unfair.
- Constructive dismissal: If an employee feels that the implied term of mutual trust and confidence has been breached by you requiring them to get vaccinated, they can choose to resign in protest and claim constructive dismissal.
- Discrimination: There are protected areas under Human Rights legislation. Your employee may feel their refusal is valid based on these protected grounds. Pregnancy, existing medical conditions, and religion or creed could all fall under protected grounds to refuse a vaccine.
This illustrates the importance of understanding why the employee is refusing the vaccine. To layer on more complexity, there is also the issue of confidentiality – an employee may not have wanted to reveal a disability or that they are pregnant or trying to get pregnant.
In scenarios like this, the employee could state that due to a protected reason, they won’t be vaccinated. At that point, it is suggested that the employer should try – up until undue hardship – to accept the employee’s decision and accommodate them. Note that working from home or creating a workstation that is socially distanced are all ways to help ensure safety for all. The installation of plexiglass or other dividers is also an option to increase protection.
Government Mandated Vaccine Policies
In Ontario, the government has required that long-term care facilities have a vaccine policy. They require all employees to:
• Provide proof of vaccination for each dose of the vaccine,
• Provide a documented medical reason for not being vaccinated
• Participate in an education program about the benefits of being vaccinated and the risks of not being vaccinated.
This makes it very clear and simple for employees and employers.
If you own a business in a sector that is not legally required to have a vaccination policy, each set of circumstances will vary and need to be evaluated. Some examples:
- If the workforce works remotely, vaccine requirements may not be reasonable. Requiring vaccines of in-office workforces is more reasonable.
- If you work with vulnerable populations, a vaccine policy would be more important and reasonable.
- If you do proceed with a mandatory vaccine policy, ensure the privacy of your employees: have a plan in place to keep vaccine status information confidential. This includes where the information is stored, how long it will be kept and who has access to it.
In a scenario, where both vaccinated and unvaccinated workers are together in an office, what rights do the vaccinated have to ensure they are kept safe?
An employee is within their rights to go to the employer with any concerns they have about their health and safety in the workplace. The employer must decide how to proceed with this issue and it is within their right to grant special accommodations or deny them. Note that again the employer must consider the reasons for the request from the employee. If it is related to their human rights, the employer should consider accommodating the request. Or be willing to face a human rights complaint.
Best Practices for Employers To Help Mitigate These Issues
Knowledge, especially in a time of uncertainty and fear, is often the best tool to mitigate problems. Arrange for information for your employees to educate them on the importance of the vaccine. Dispelling myths and “fake news” should be part of that education process. In Ontario, everyone gets paid time off to get the shot and if they experience a negative reaction. You can also ensure they receive extra paid time off, in the event of a reaction to the vaccine.
This issue is delicate and is best dealt with through a solution-oriented discussion between owners/management and employees. Creating a clear policy, making it clear to your team and inviting private conversations to discuss concerns can go a long way to the employee feeling safe and able to openly discuss the situation. It is in everyone’s best interest to avoid fighting this out in court.
If you need some consultation time with a CEO Law lawyer to review your policy and ensure you are protected, please let us know. We are here to guide businesses through the pandemic and all of the related issues.