Due to the prevalence of the Delta variant and recent rise in COVID-19 case numbers that is being described as the 4th wave of the pandemic in Canada, the federal and provincial governments are considering various vaccination mandates and encouraging all employers to implement workplace vaccination strategies in consultation with their labour law advisors.
B.C. mandates COVID-19 vaccination for all long-term care, assisted living workers
On August 12, 2021, B.C.’s Provincial Health Officer Dr. Bonnie Henry announced that all workers in long-term care and assisted living facilities in BC will be required to be vaccinated against Covid-19 by October 12, 2021. The mandatory vaccination applies to staff, as well as volunteers and personal service providers entering long-term care settings. Until Oct. 12, all unvaccinated staff are required to wear personal protective equipment (PPE) and be tested regularly for COVID-19.
Mandatory Vaccinations for the Federal Public Service and Federally Regulated Sectors
This was followed on August 13, 2021 by the Federal Government announcing mandatory vaccinations will be required as early as the end of September for the Federal Public Service and Federally Regulated Sectors. The announcement included the following important statements:
The Government of Canada today announced its intent to require vaccination as early as the end of September across the federal public service. Vaccinations are our best line of defence and for those few who are unable to be vaccinated, accommodation or alternative measures, such as testing and screening, may be determined in each situation, to protect broader public health by reducing the risk of COVID-19.
In addition, as soon as possible in the fall and no later than the end of October, the Government of Canada will require employees in the federally regulated air, rail, and marine transportation sectors to be vaccinated. The vaccination requirement will also extend to certain travellers. This includes all commercial air travellers, passengers on interprovincial trains, and passengers on large marine vessels with overnight accommodations, such as cruise ships.
(…) Further, the Government of Canada expects that Crown corporations and other employers in the federally regulated sector will also require vaccination for their employees. The government will work with these employers to ensure this result.
The Government of Canada is also calling on all organizations beyond the federally regulated sector to put in place their own vaccination strategies, drawing on the advice and guidance available from public health authorities and the Canadian Centre for Occupational Health and Safety.
Private BC Businesses and Workplace Vaccination PoliciesGiven the rapid progression of the Delta variant and the precedents coming from some U.S. and Canadian companies, more and more private businesses have also been considering workplace vaccination policies, either voluntary or mandatory. When asked whether employees at private businesses could soon face requirements to be fully vaccinated as a condition of employment, Dr. Bonnie Henry said on August 12, 2021:
That is fair game. These are business decisions that they (the individual workplaces) need to make in conjunction with their own labour lawyer advisors but I do think it is a perfectly valid thing.
Our Employment & Labour Group first wrote a detailed article on this topic back in January 2021, when vaccinations were just starting to roll out – the article provides more details on rights and obligations and is available here.
Our Labour Lawyer Chris Drinovz was recently asked to provide his commentary on CBC News regarding Vaccine Mandates in Workplaces and hurdles business owner employers might face if implementing a vaccination policy at their individual workplace. Video from CBC News Vancouver aired on August 13, 2021:
Below we included a summary of Chris Drinovz’ comments from CBC News written article available in full here:
Drinovz says that the threat of variants and the fact that vaccines curb virus transmission could be enough proof for some employers to require vaccines. Without provincial legislation, however, each employer’s decision will have to be on a case-by-case basis.
Human rights are an obvious concern when it comes to vaccine mandates, according to Drinovz. This is especially so, given that it is entirely legal for non-unionized workplaces to fire employees for any reason whatsoever, including not being vaccinated. “Human rights legislation across Canada protects people from discrimination on the basis of certain protected characteristics,” Drinovz said. “One of those is a medical disability, another one is somebody’s legitimate religious beliefs.”
In the opinion of Drinovz, not being vaccinated does not constitute “just cause” for firing. That would mean if employees were fired for being unvaccinated and felt they were discriminated against, employers could be taken to tribunals and be told to pay severance or notice.
Without the backing of far-reaching federal legislation, Drinovz says employers should be prepared to implement work-from-home and other safety measures in the absence of vaccine mandates.
Issues that Need to be Considered by Employers and Employees
Nature of Workplace
While the encouragement to implement a workplace vaccination is there, employers should do their homework before implementing a policy at their workplace and discuss it with an employment/labour lawyer as recommended by Dr. Henry in her August 12 statement. The nature of each workplace varies and the requirement for a vaccine should be connected to a real threat of an outbreak within the workplace or the need to protect vulnerable people within the workplace.
Human Rights Accommodations
There are also individuals who may be protected against discrimination under the BC Human Rights Code (i.e. unable to get vaccinated due to medical reasons or sincere religious beliefs) who need to be accommodated by the employer.
Employees who experience discrimination and have a medical condition preventing them from receiving the Covid-19 vaccine may have a human rights claim against the employer.
Wrongful Termination and Severance Pay
In most cases where an employer terminates an employee for not complying with their mandatory vaccination policy, the employee is entitled to notice or severance pay based on their employment contract or common law in the absence of a valid written termination clause.
Employers should keep in mind that even asking an employee whether they have had the vaccination and requesting proof of vaccination or a vaccination certificate is a collection of personal information/personal health information triggering privacy considerations. Information regarding an employee’s identity and vaccination status should not be shared with other employees.
Our Employment & Labour Group has been working with businesses to develop and draft the right policy for their workplace and are here to help! Get in touch today.
CLICK HERE to get a free copy of our webinar recording and presentation materials from our June webinar Your Guide to Rolling Out a Vaccination Policy with Chris Drinovz and senior lawyer Mike Weiler.
Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter or drafting of workplace vaccination policy, please contact Chris Drinovz at email@example.com
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