Considerations for Drafting COVID-19 Employee Vaccination Policies for Agencies Supporting Vulnerable People
Over the past few months, PooranLaw has been working hand-in-hand with agencies across the province to develop employee vaccination policies for agencies supporting people with disabilities. While these are uncharted waters, having a clearly worded and balanced policy in place that is consistent with established legal principles is your best bet for encouraging vaccination and managing vaccination refusals amongst staff. In this post, we set out the key ingredients for an effective (and legally enforceable) employee COVID-19 vaccination policy. If you need advice about what type of policy is right for your agency be sure to reach out to your regular PooranLaw lawyer for advice and policy language.
1. Individual Agency Assessment
The first consideration in crafting a vaccination policy is an agency’s pre-existing limitations. Agencies should review existing policies, employment contracts, past practices, and collective agreements to determine if anything ties their hands in relation to the types of policies that can be implemented and any procedural restrictions on how the policy should be developed (such as notice requirements, union consultation requirements, statutory freeze restrictions, etc.).
2. Mandatory or “Alternative Measures”?
The next consideration is whether the vaccine policy will be mandatory, or whether it will offer an employee the choice to vaccinate or be subject to alternative health and safety measures. Making a vaccine policy “mandatory” means that vaccination becomes a term of employment, and that failure to vaccinate can be punishable by discipline or termination of employment.
(a) The Pros and Cons of a Mandatory Policy
Mandatory vaccination policies for existing employees have generally not been upheld in union setting pre-pandemic. Labour arbitrators prefer that these employees have a choice of whether to vaccinate or not. That is not to say that agencies cannot adopt mandatory policies for their existing employees. COVID-19 presents an unparalleled modern crisis, and the case law may evolve to permit more aggressive policies. However, agencies should be aware that they are moving into uncharted territory and may face enhanced legal risk.
There is also enhanced legal risk in adopting a mandatory policy for existing non-union employees. An employee disciplined or terminated for non-vaccination may be able to claim constructive dismissal or dismissal otherwise without cause and claim hefty termination benefits.
In contrast, agencies have much more leeway to make vaccination a condition of employment offers for new hires (subject to human rights considerations, discussed later in this article). This is certainly a tool that agencies should consider, subject to their individual circumstances.
(b) The Pros and Cons of Alternative Measures
The other option is to give an existing employee a choice between vaccination and alternative safety measures. This approach (when well implemented) has been approved by labour arbitrators when implemented in unionized workplaces caring for vulnerable residents. These alternative measures (discussed more below) can impose undesirable consequences on an employee (like being excluded from work without pay) so long as they are reasonably necessary to address the health and safety risks of COVID-19. This form of policy carries much less risk than a mandatory policy and is still a powerful tool against transmission.
This form of policy also carries less risk for existing non-union employees. This is because all employers have an obligation under the Occupational Health and Safety Act (“OHSA”) to take all reasonable measures to provide a safe workplace. This will mitigate the risk of constructive dismissal claims by employees if these health and safety measures are implemented.
3. Scope of Vaccination Policies
The next consideration is which workers your vaccination policy will apply to. This analysis should generally be guided by the position’s risk of transmission within the workplace. The higher the health and safety risk, the less legal risk there is in including that position within the policy’s scope.
Workers that provide frontline direct support to people supported will be the group that is easiest to justify as including in the policy’s scope. The next level of risk will come from those employees who attend in person with other co-workers or the public in any transmissible setting. Finally, those employees who do not attend in person with others (such as those working remotely) are less likely to be justifiably included in a vaccine policy’s scope unless you provide for less intrusive alternative measures for them that account for their lower risk.
The types of workers who should be included under the policy’s scope are: employees, volunteers, contractors, and students. You will also want to ensure similar measures are put in place for staffing agency workers, either by your agency or by the staffing agency.
4. Consequences for Refusal to Vaccinate under “Alternative Measures” Policies
There are a number of alternative health and safety measures to consider in the event that an employee chooses not to vaccinate. The measures imposed should be clearly and demonstrably tailored to reducing the risk of COVID-19 transmission. The more aggressive the measure, the higher the risk (though this risk is often justifiable).
The measure with the highest risk is exclusion of unvaccinated employees from the workplace without pay. However, this will be likely defensible where there is a heightened level of background risk of COVID-19 transmission, where the employee has a heightened risk of transmission from their work, and where less intrusive measures do not reasonably respond to the risk. Exclusion for the duration of the pandemic is high risk, while exclusion of front-line workers during workplace outbreaks carries less risk (and have been upheld before the pandemic). We often suggest a middle ground, permitting pre-emptive exclusion from the workplace during periods of heightened community risk (such as higher regional risk levels or when there is other reliable public health evidence of increased community transmission).
Other measures, organized from highest risk to lowest risk, are:
• Reduction in work opportunities or hours of work to limit transmission risk;
• Change of work location and responsibilities;
• Continued restrictions on secondary employment;
• Enhanced personal protective equipment, screening, and testing;
• Use of alternative medical treatments that become available; and
• Education, encouragement, and cautions as to the risk.
Key factors in weighing their appropriateness of each of these measures are: the risk of transmission within the agency, the level or community risk, the risk of transmission from the employee’s position and work location, the needs and interests of other stakeholders, and the viability of less intrusive measures from a safety and operational perspective.
5. Respect for Human Rights
Finally, if an employee has a need for accommodation on human rights grounds, employers will have a legal obligation to engage in the accommodation process (even at time of hire). Employees are most likely to request accommodation from vaccine policies on the basis of medical or religious/creed restrictions.
- Medical Restrictions: It is only just emerging which groups will be identified as being unable to safely take vaccines that become available. This will be a dynamic and evolving process. The key will be to ensure that the medical restrictions are substantiated by adequate medical evidence.
- Religious Restrictions: This will be triggered if a person has a sincerely held religious or creed-based belief (connected to the person’s spiritual faith and self-definition) that prevents them from taking the vaccine. They key factors will be whether the belief is insincere (this can be difficult to prove), whether the belief is actually religious or merely ethical (and thus not protected), and whether the belief actually prohibits vaccination or is merely a preference. These factors should be assessed with legal advice.
It may be possible to accommodate such persons through alternative means, such as continued use of masks or by transfer to positions that drastically reduce the risk of transmission (like work from home). If no accommodation is possible short of undue hardship, then you can take steps to nonetheless exclude the employee from the workplace when the risk of their continued work justifies it and when no other accommodation short of undue burden can be found. Note, however, that this should only be done with legal advice.
Legal Advice in Crafting Policies
While these considerations will be helpful, crafting these policies can be a daunting task. Our firm has drafted many of these policies since COVID-19 vaccines were approved in Canada for agencies with varying levels of risk tolerance. We are happy to assist agencies in finding the right policy for them.
PooranLaw will continue to monitor legal developments related to vaccination policies. In the meantime, if you require legal assistance in drafting these policies, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
