Canadian Lawyer

April 2021

The most widely read magazine for Canadian lawyers

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Page 29 of 51

28 HEALTH AND SAFETY/HUMAN RIGHTS AND PRIVACY SPECIAL PROMOTIONAL FEATURE Mandatory COVID-19 vaccination in the workplace In most cases, an employer can require COVID-19 vaccination as a condition of employment WITH COVID-19 vaccination soon within reach for most Canadians, many employers want to know if they can implement a man- datory vaccination policy for health and safety reasons, corporate branding or both. Particularly in public-facing workplaces — such as retail, personal services, health care, education, etc. — there may be a competi- tive advantage to being able to "advertise" that employees in the workplace have all been vaccinated. In most cases, an employer can require COVID-19 vaccination as a condition of employment, subject to the considerations addressed below. Human rights An employee unable to receive the COVID-19 vaccine due to a health condition or religious belief may claim mandatory vaccination is dis- criminatory under human rights law. In that case, an employer must be able to demonstrate that vaccination is a bona fide occupational requirement and accommodate the employee to the point of undue hardship. Each request for accommodation must be assessed on an individual basis, and possible accommodation might include: • exempt the employee from the require- ment to be vaccinated • move the employee to a remote work arrangement or a position or location in the workplace that does not require direct and/or regular contact with co-workers, customers, clients, vulnera- ble individuals or the public • require the continued use of personal protective equipment (PPE) to mitigate the risk of transmission. Privacy An employer that operates in a province or industry with privacy legislation applicable to employee personal information must ensure collection of vaccination information is done in compliance with that legislation. To this end, a vaccination policy should clearly out- line why and how vaccination information is collected, the scope of its use and disclosure and how it will be stored and destroyed. Non-unionized workplace Subject to the human rights and privacy con- siderations set out above, an employer can implement a mandatory vaccination policy for its non-unionized employees. For a newly hired employee, the require- ment to be vaccinated should be clearly set out in the offer of employment. For an existing employee, depending on the nature of the workplace and the employ- er's justification to require mandatory vacci- nation, refusal to be vaccinated may or may not amount to just cause to terminate the employee. If not, the employee may be enti- tled to pay in lieu of notice and, in some cases, severance pay (under employment standards legislation). Common law notice may also be owed, depending on the terms and conditions of employment. Accordingly, before implementing a mandatory vaccination policy, an employer should consider how it will respond and the associated cost — financial and otherwise — if an employee refuses to be vaccinated on the basis of personal choice. Unionized workplace In a unionized workplace, a mandatory vacci- nation policy may be challenged as a violation of the collective agreement. In that case, an employer will be required to establish that the policy is reasonable for health and safety pur- poses or other workplace factors. At present, there is no reported case law on the reasonableness of a COVID-19 vaccina- tion policy. However, there are a number of arbitration decisions in which an employer's Brought to you by Shana French and Sundeep Gokhale

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