The Ongoing Saga on COVID-19 Vaccination Policies
As of July 22, 2021, over 80% of adults in Ontario have received their first dose of the COVID-19 vaccine, and over 65% have received both doses. As the immunization rates continue to rise, the topic of mandatory vaccination policies is increasingly being discussed.
In our previous blog post, Workplace COVID-19 Vaccination Considerations, we outlined that the law is unclear as to whether employers can implement mandatory COVID-19 vaccination policies. There have not yet been any cases which consider the legality of mandating vaccination against COVID-19.
Despite this, in recent weeks a number of organizations have announced that they will be adopting mandatory vaccination policies. Notably, Seneca College, a university in Toronto, has advised that COVID-19 vaccination will be mandatory for all on-campus activities effective September 7, 2021. While the full details of the vaccination policy have yet to be published, the President of Seneca College indicated that "vaccinations will be a condition for students and employees to come on campus", but medical exemptions will be granted upon presentation of appropriate documentation.
In a similar vein, both Western University and the University of Toronto have advised that it will be mandatory for students living in campus residences to receive their first COVID-19 vaccination dose within 2 weeks of moving in and to receive their second dose when eligible. Accommodations will be made for those who cannot be vaccinated based on an Ontario Human Rights Code protected ground. Western University has clarified that the mandatory vaccination requirement will also apply to live in staff, such as residence dons, as their living arrangements form part of their contractual duties.
In contrast, however, a number of other Ontario universities, such as Algoma University, have recently announced that COVID-19 vaccination will not be mandatory for their students or staff to live in residence or attend campus.
This range in responses underscores the complex and competing interests in developing COVID-19 vaccination policies. While it is widely accepted that vaccination will reduce the risk of getting sick with COVID-19 if exposed, this benefit must be weighed against other considerations, such as human rights and privacy interests.
In light of these challenges, employers are encouraged to proactively think about how to handle COVID-19 vaccination in their workplace. In considering whether to adopt a COVID-19 vaccination policy, either mandatory or voluntary, employers should keep the following in mind:
1. Occupation Health and Safety Obligations
Under the Occupational Health and Safety Act, Ontario employers are obliged to "take every precaution reasonable in the circumstance" for the protection of its worker.
Whether mandating vaccination against COVID-19 for workers amounts to every precaution reasonable will likely be highly circumstance specific. For workplaces where less intrusive COVID-19 prevention measures can be adopted, such as physical distancing and sanitation protocols, it is unlikely that mandating vaccination would be necessary to comply with this requirement. On the flipside, it may be more justifiable to mandate COVID-19 vaccination for the protection of workers if the workforce is frontline or deals with a vulnerable section of the public.
For more information on employers' obligations under the Occupational Health and Safety Act during COVID-19 check out our blog post, Return to Work from COVID-19 Part I: Business' Occupational Health and Safety Duties.
Importantly, any vaccination policy which is adopted should provide for accommodation to the point of undue hardship for those who cannot receive the vaccination due to an Ontario Human Rights Code protected ground, such as a medical condition or religious belief.
This has been a key feature of the mandatory vaccination policies we have seen so far. For example, Western University's FAQ page on vaccination stipulates that an individual may request accommodation if they cannot get vaccinated due to medical reasons or sincerely held creed/religious beliefs. The university does require that individuals requesting accommodation submit supporting documentation, either in the form of a doctor's note or a sworn statement.
What accommodation is appropriate will depend on the nature of the workplace, but may include requiring the employee to continue to comply with all current COVID-19 health and safety measures or performing their work duties from home.
3. Privacy
Vaccination policies which involve the collection of personal health information also raise privacy concerns. Employers should address why the information will be collected, how it will be used or disclosed, and how such information will be stored. Generally, the less amount of personal health information collected, the better. Employers should only request or require the information strictly necessary to implement their vaccination policy.
4. Reasonableness of the Policy
In all cases, the decision to implement a COVID-19 vaccination policy should be based on the unique nature of the workplace. Employers should consider whether their workforce is frontline or interfacing with a vulnerable sector, as well as the layout of their workspace and the availability of less intrusive measures, such as physical distancing or work from home arrangements.
If an employer does wants to adopt a vaccination policy, serious thought should be given to whether it is necessary to mandate vaccination. As many employees may already be keen to get vaccinated, encouraging vaccination or implementing an incentivising scheme may be effective alternatives to mandatory policies.
Conclusion:
The issue of whether employers can either require or request employees to disclose their vaccination status is a very under-developed area of the law. Given the novelty of the COVID-19 virus and the many challenges it presents, there are no clear-cut answers yet. We expect the approach to COVID-19 vaccination policies will continue to develop as the pandemic evolves and more Canadians receive the vaccine.
For now, we are keeping a close eye on this developing area of the law and encourage employers and employees to do the same. We'd be happy to answer any questions you may have about COVID-19 vaccination in your workplace.
