COVID-19: The Vaccine & “Return-to-work” Policies

  • February 02, 2021
  • Taran Hoogsteen

As the distribution of the COVID-19 vaccines begins in Ontario, there are many workers who either remain working from home or waiting on their places of employment to re-open. Assuming that broader distribution of the vaccines results in an easing of government restrictions to allow employees to return to their workplaces, employers may start considering how to implement “return-to-work” policies to avoid scrambling at the eleventh hour. As one aspect of these policies, many employers are wondering if they can require their employees to be vaccinated. There is currently no law in Ontario requiring an adult to be vaccinated against COVID-19, and with the vaccines in short supply, only a small portion of the population even has the opportunity to be vaccinated. Regardless, these types of policies are certainly being considered by various levels of government, and talk of “vaccine passports” has already been floating around.

If no provincial vaccine mandate is implemented, individual employers will have to take it upon themselves to determine how to introduce employees back into their workplaces in light of legal and social responses to the pandemic. With so few vaccines distributed thus far and the provincial lockdowns looming for the foreseeable future, it will likely be some time before employers will need to start implementing such policies. However, these policies promise to be complex, requiring a fine balancing of the rights of each stakeholder. This article will discuss some of the considerations for employers when creating these “return-to-work” policies.  

Background Considerations

At present, an employer is not able to mandate a vaccine or require them as a condition of employment. To some, compelling an individual to get the vaccine in order to be present in a public space may seem like a blatant human rights violation. To others, it seems more like an inevitable necessity to safely return to work. Employees have rights under the Occupational Health and Safety Act to know about potential hazards in the workplace, to be involved in resolving workplace health and safety concerns, and to refuse unsafe work. In some cases, implementing these policies may be the only way to get certain workers to return to work at all. Consequently, employers have motivations to prevent the spread of infectious diseases, and implementing vaccination policies seems like an obvious way to do so.

Pre-Pandemic Examples of Vaccine Policies: Schools and Hospitals

There is precedent for mandated immunizations in Ontario. Consider the Immunization of School Pupils Act (ISPA).[1] This legislation requires parents to have their children immunized against various diseases, failing which the parent can be fined and the child may be barred from attending school. The stated purpose of the ISPA – “to increase the protection of the health of children…”[2] – could serve as a paradigm for an employer to argue that a vaccination policy is intended “to increase the protection of the health of my employees, customers, patients, etc.”

Vaccination policies have also been a topic in labour arbitration since before the words “COVID” and “pandemic” became part of our daily vernacular. Certain environments, such as long-term care homes and hospitals, have dealt with rampant influenza outbreaks year over year. In response, some workplaces already require their employees to maintain up-to-date flu shots, just as legislation mandates the vaccination of students. Further, a number of hospitals across the country have attempted to implement “vaccine or mask” policies in years past, with varying degrees of success.

In one such example from 2015, the Sault Area Hospital attempted to implement a “vaccine or mask” policy which was met with strong opposition from the Ontario Nurses’ Association. In a lengthy decision involving numerous expert witnesses, the arbitrator ultimately struck down the policy as unreasonable, finding it to be a “coercive tool”.[3] The arbitrator determined that the policy did not reasonably accommodate those who conscientiously objected to receiving the immunization and were required to wear masks at work, citing evidence from one registered nurse who stated: “I felt I was being publicly put on display for choosing not to get the flu shot…I felt I was being bullied into it and harassed”.[4] The arbitrator specifically noted the importance of balancing human rights when developing these policies.[5]

The Complicated Role of Human Rights

The Sault Area Hospital decision is a good example of the complicated interplay between human rights, medical information and business practices that any “return-to-work” policies must consider. From a human rights perspective, employers must balance the interests of numerous stakeholders, including those of the employees as a group, the individual workers themselves, and the interests of customers, patients, clients and shareholders.

How can an employer balance all of these rights? An endless number of questions arise out of this inquiry. Multiple sections of the Canadian Charter of Rights and Freedoms may have application as these policies become more prevalent, including the rights to freedom of conscience and religion, freedom of expression, peaceful assembly and association, and the right to life, liberty and security of the person.[6]

Further, the Ontario Human Rights Code includes an absolute right of accommodation in the employment context.[7] Some employees cannot be accommodated by being permitted to work from home indefinitely, meaning that they must be able to safely participate in the workplace. Some employees are unable to receive the vaccine for medical, personal or religious reasons, and situations may arise where these unvaccinated employees may be exposed to the virus. Could an exemption from the COVID vaccine amount to a disability down the road, allowing someone who cannot find work in their field as a result to access long-term disability payments? Could certain forms of accommodation, as the nurse in Sault Area Hospital indicated, create environments of embarrassment and harassment for employees who are forced to openly indicate their medical, personal or religious positions just to continue working? Will certain forms of differential treatment suddenly become justified? These are just some of the complicated conundrums that policy-makers will have to wrestle with.

Final Thoughts

It seems inevitable that these policies will be coming, whether by government mandate or otherwise. Balancing health and safety concerns without unjustifiably infringing on the rights of individuals will prove to be a herculean task. Harmonizing this bevy of concerns into viable policies will not be an enviable task, especially if employers are required to fashion these policies without any significant governmental guidance.

About the Author

Taran Hoogsteen is a graduate of the Queen’s University Faculty of Law and an articling student with Ross & McBride LLP, a full-service law firm in Hamilton.

 

 

[2] Ibid, at Section 2.

[4] Ibid, at para. 327.

[5] Ibid, at para. 338.

[6] Canadian Charter of Rights and Freedoms, ss. 2(a)-(d) & 7.

[7] Human Rights Code, R.S.O. 1990, c. H.19, s. 5.

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