COVID – 19: What’s an Employer to do?

COVID – 19: What’s an Employer to do?

By Evan Morden

COVID – 19 vaccinations have been a divisive topic, and while over 82% of Albertans are fully vaccinated, this leaves many employees unvaccinated resulting in uncertainty for employers. Absent legislative guidance, many employers have been left in the dark wondering what stance they can stake for mandatory vaccination policies in the workplace.

Occupational Health and Safety is the responsibility of everyone in the workplace. Employers must ensure the health and safety of their employees as far as reasonably practicable by identifying and eliminating hazards in the workplace, such as COVID – 19 and other respiratory viruses. Employees share a similar burden and must take reasonable care to protect themselves and others in the workplace.

Employers should be aware that policies giving rise to discipline generally must be:

  • Made known to all the employees
  • Consistently enforced
  • Clearly communicated to all employees
  • Reasonable

Additionally, the penalty for breach of the policy must be clearly indicated, whether dismissal or otherwise.  The reasonableness of the policy will generally dictate whether it is upheld in Court. Reasonable policies are tailored, accommodative, and supported by evidence.

In the context of a COVID – 19 mandatory vaccination policy, this means the policy should distinguish between employee cohorts and risk profiles for transmission, it must accommodate those who cannot vaccinate on the basis of a Human Rights ground, such as disability, and there must be evidence supporting the efficacy of vaccines.

As of November 30, 2021, the Federal Government will require all Canadians departing on flights from Canadian airports to be fully vaccinated against COVID – 19. Employers may be wondering how to treat employees who will need to travel for work but refuse to vaccinate.

For employers, a mandatory vaccination policy for employees who must travel by air may be upheld as reasonable. An employee in this situation who refuses to vaccinate may find their employment contract has been frustrated, as the contractual performance has become something radically different than what was bargained for, through the fault of neither party, because of COVID – 19 and federally mandated vaccination requirements for air travel.

For employees who travel by air occasionally, mandatory vaccination may be upheld as reasonable, but only where the employee cannot satisfy the purpose of travelling by other means. For example, virtual meeting software has become widely available since the beginning of the pandemic, and if the purpose of the travelling was for training, then perhaps the employee could receive the training virtually.

Generally, it is unlikely employers will be able to implement mandatory vaccination policies for employees who do not have to travel by air for their job, unless the nature or context of the job requires it.

While appropriate in some contexts it’s important to note that mandatory vaccination policies may not be reasonable in every context. Employers will need to consider the reasonableness of implementing such a policy in light of its Occupational Health and Safetyresponsibilities, rights and obligations under the employment contracts with its employees, and whether the policy is necessary in light of reasonable alternatives such as mandatory masking requirements and work from home arrangements.

However, emerging case law suggests the scope of reasonableness is expanding as the pandemic endures. A recent arbitration decision in Ontario, Paragon Protection Ltd. and UFCW Local 333, dismissed a union grievance challenging the validity of mandatory vaccination for the security guards of Paragon Protection Ltd. The decision has tightened exemptions based on creed, noting the tribunal is unaware of any decision that has found beliefs against vaccinations amounting to a creed under human rights legislation, and if there was such a belief, it was suggested it may amount to undue hardship for the employer to accommodate as it would jeopardize health and safety.  Higher fatality rates, higher infection rates, and permissive contractual language all influenced the outcome of the decision, however, the decision reflects a shift in attitude towards mandatory vaccination and suggests Human Rights compliant policies may be upheld as reasonable and consistent with Occupational Health and Safety responsibilities in the face of an ongoing pandemic.

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