This guide does not act as or replace legal counsel. The following information is specific to Ontario and is subject to change as legislation evolves. Reach out to us for more information!
Intro
We understand how complex the discussion of Vaccine Policies can get. Employers must balance their health and safety obligations with employee Human Rights and the business' desire to get people collaborating and working together again.
This guide may be a helpful place to start in building your philosophy, ideating best practices and eventually creating a policy surrounding COVID-19 Vaccines and other health and safety measures.
We strongly suggest employers consult with their legal counsel and/or ppl stuff prior to rolling out a Vaccine Policy. This is a high level overview and does not cover all the relevant information you may need to create and enforce your policy.
Q: Can employers implement a COVID-19 Vaccination Policy?
A: As of now, employers are able to create a COVID-19 Vaccine Policy for their workplace with the objective of keeping employees healthy and safe. Under the Occupational Health and Safety Act (OHSA), it is the employers duty to take reasonable steps to keep employees healthy and safe in the workplace.
Q: Can employers make COVID-19 vaccines mandatory for employees?
A: Choosing to make COVID-19 vaccines mandatory for employees is a complex decision that will require thought, research and consulting with your legal counsel. At this time, it is believed that employers can make COVID-19 vaccines mandatory if reasonable to the employee population. For example, it may be deemed reasonable if an employee must complete their work facing the public, or with a high risk population, or in a physical group setting, siting OHSA obligations. It may not be deemed reasonable to require a vaccine if the employee can do their job from home, for example.
Q:What if someone is choosing not to get vaccinated, but works in a high risk/public/group setting?
A: If an employee chooses not to get vaccinated, the employer should make every effort to offer accommodations that support the employee, while also keeping other employees and customers safe. An example of an accommodation would be to offer a work from home option, if possible, or continuing to enforce mask and distancing requirements. Employees may choose not to get vaccinated based on grounds protected under the Human Rights Code, such as medical, religious, sex, ethnicity etc. These grounds must be accommodated by the employer.
Q: Can an employer require proof of vaccination to enforce a mandatory vaccine policy?
A: As outlined in answer two, for some employee groups, it may be deemed reasonable, for the health and safety of others, to require proof of vaccination. However, employers must, at all times, ensure privacy regarding retention of medical records, their use and disclosure of medical information. Employers must avoid being a custodian of individual health records and destroy securely after intended use. It is also wise for employers to state the objective of gathering this information. For example, it may be reasonable to gather this data in order to make an informed and safe return to office plan.
Some Vaccination Policy Considerations
Does your policy...
Make people choose between the getting the vaccine and losing their job?
Recognize legitimate exemptions by way of protected grounds under the Human Rights Code?
Offer accommodations?
Allow employees to inform themselves on the nature and the purpose of the Policy in its current form, and when and if it is modified or superseded?
Strike a balance between employee rights and employer Health and Safety responsibilities and objectives?
Commit to being reviewed as frequently as needed to ensure (a) its contents remain reasonable and relevant in light of current Public Health Guidelines, and (b) it aligns with the business’ position regarding vaccination as circumstances evolve?
Reach out to ppl stuff to learn more and let us help you craft a Vaccination or Return to Office policy and plan to keep your employees healthy and safe.