As we near the end of 2020, and nearly 10 months living in a pandemic have passed, news of a COVID-19 vaccine roll-out is welcome news. It also means people with disabilities, families, and agencies in the Developmental Services Sector (“DS Sector”) will need to make some important decisions moving into 2021.
Vaccination in Canada
The first vaccine dose in Canada was administered on December 14, 2020 to health care workers. Ontario is expecting to receive 2.4 million doses in the beginning of 2021. Each individual recipient will receive an initial dose and a second one three weeks later. The Province has indicated that the priority populations will be healthcare workers, longer term care home residents and their caregivers. Other priority populations will include adults in Indigenous communities, residents of retirement homes, and recipients of chronic home health-care.
While the initial list does not expressly include people living with intellectual and developmental disabilities, such vaccines will eventually be offered to people supported living in congregate care settings and support workers. We know that people with disabilities are an at-risk population and ought to be prioritized for the vaccine. It is important that accessibility be top of mind for the role out.
Our firm has reviewed the case law to date on vaccination policies to provide guidance on such policies here with respect to employees, people supported, and families. Given the unprecedented nature of the COVID-19 pandemic, prior vaccination law may not be fully analogous or applicable to the situations of many employers today. However, the prior case law can provide a floor or baseline to understand how arbitrators (and perhaps courts) will think about these issues.
Employment Law Considerations
Many employers faced with imminent vaccine rollout are beginning to decide whether they will require vaccination for their employees. We examine both the union and non-union setting (applicable to non-union employers, potentially including families who hire private workers) here to provide principles (based on the case law) to guide that thinking. However, each situation is different, and it is important to obtain legal advice in crafting such a policy (especially given that this is an unprecedented situation).
Unionized Workplaces
In assessing unilaterally imposed employer policies that encourage, strongly incentivize, or even require vaccination of employees, labour arbitrators apply a “balance of interest” approach. This involves balancing the employee’s interest in bodily integrity and privacy with the employer’s legitimate interests in invoking the vaccination policy. Much of this case law was developed in response to annual influenza vaccines (“flu shots”).
General Policy Requirements
In addition to the above, it is also crucial that vaccine policies follow these general rules applicable to all unilateral unionized employer policies: not be inconsistent with the collective agreement (some health care agreements explicitly address mandatory vaccination or vaccination policies), are clear and unequivocal, are bought to the employees’ attention before they are relied on, notify employees of any disciplinary consequences from non-compliance, and are consistently enforced (subject to human rights exceptions, discussed below).
Two types of policies have received treatment by labour arbitrators: (1) policies requiring an employee to choose between receiving a vaccine (or sometimes antivirals) or else going off work without pay during outbreaks, or (2) policies that require an employee to receive a vaccine or else wear a procedural mask throughout the entirety of flu season.
Vaccinate or Exclusion Policies
Arbitrators have generally upheld employer policies requiring employees in congregate care and hospital settings to choose between vaccination for the flu or being excluded without pay during a flu outbreak. It may even be possible to extend the scope of such policies beyond just outbreaks to other times of enhanced risk. Based on recent case law related to the exclusion of employees who refuse surveillance testing for COVID-19, it may be that the balance of interest weighs in favour of vaccination, at least while COVID-19 is circulating widely in the community. It remains to be seen whether arbitrators will go that far in the absence of strong recommendations or directives of the government related to mandatory vaccination in at-risk settings.
Vaccinate or Mask Policies
Arbitrators have had a more mixed record of decisions on vaccine-or-masking policies (“VOM policies”). While one case in British Columbia upheld such a policy, two cases in Ontario struck such policies down, largely based on insufficient evidence that masking reduces the spread of flu. the evidence on the efficacy of masks in preventing COVID-19 spread is still in development, and a COVID-19 VOM policy may be justifiable if expert evidence can support it. The question is, whether this is a viable alternative given that current guidance is that PPE use will be required even where a staff member is vaccinated due to questions about the efficacy of the vaccine in preventing spread as opposed to merely preventing illness. The Toronto Star has recently reported[1] that this question is still up in the air, and it must be monitored going forward as these policies are developed.
Human Rights and Accommodation related to Vaccination
Finally, if an employee has a need for accommodation under a vaccine policy for human rights grounds, employers will have a legal obligation to engage in the accommodation process. Employees are most likely to request accommodation 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. At present, people with severe allergies have been told to avoid the Pfizer vaccine. This will be a dynamic and evolving process. The key will be to ensure that the restrictions are documented 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 (though this should only be done with legal advice).
Non-Unionized Employees
The case law in respect of vaccination policies for non-unioniz employees (and workers supporting families privately) is much more sparse. The two key factors that will limit a non-unionized employer’s ability to impose vaccination policies will be human rights law and the law of constructive dismissal. We have already covered human rights considerations above, and the same principles will apply here. That leaves constructive dismissal.
Unilaterally imposing a change in the terms or conditions of employment creates a risk that a court will deem the employee to have been “constructively” dismissed. This will entitle the employee to termination benefits, which can be quite costly. The more serious the unilateral change, the more likely it is that the employee will be found to have been dismissed. A defense to this will be that the change was contracted for and agreed to by the parties.
Requiring vaccination as a new term of employment when this has not previously been agreed to by the parties carries a risk of constructive dismissal. The more intrusive or onerous such a unilateral policy is, the higher that risk will be (since it will constitute a more fundamental change to the terms of employment). However, vaccination policies themselves will always carry at least some risk of constituting a fundamental unilateral change, given the impact of such policies on the employee’s bodily integrity and privacy interests.
An outright, unilateral requirement that an employee be vaccinated or face termination or indefinite suspension will carry a high degree of risk. However, less intrusive policies will be more likely to be defensible. For example, policies that require an employee to be vaccinated or else be excluded during times of higher risk (like outbreaks). Employers may be able to justify such restrictions as a legitimate limitation based on the specific circumstances of the employer, government directives related to COVID-19, Quality Assurance Measures Regulations and/or the employer’s obligations under the Occupational Health and Safety Act. These obligation has been found in the unionized context to justify exclusions of employees from the workplace when they constitute a heightened risk of COVID-19. It could provide the same justification here.
The risk of constructive dismissal is further diminished where the employer has reserved the right to change policies from time to time to meet its operational requirements, or where the requirement to vaccinate (subject to human rights related restrictions) is included in a contract f employment.
Requirements for Vaccination for People with Disabilities and their Families
Our firm has also had the opportunity to give thought to when and under what circumstances vaccination can be required or encouraged for people supported and their families.
Overall, we believe that it unlikely that agencies will be able to exercise nearly as much influence over whether people supported or their families take the COVID-19 vaccine. This is for a host of reasons, including human rights, consent and capacity obligations, privacy laws, and so on. While conceivably vaccination could be required as a condition for service in certain circumstances, service denial related to vaccination will come with considerable risk and thus exclusions of this nature should be assessed on a case-by-case basis and only with legal advice.
Conclusions
The above information indicates that an employer has several options for imposing a COVID-19 vaccination policy. The more limited the policy (e.g. vaccinate or be excluded without pay during outbreaks in the facility), the less risk such a policy will bring. However, the exceptional circumstances of the pandemic and the apparent high efficacy of COVID-19 vaccines (as reported by the news) may still justify a broader policy.
As always, PooranLaw will continue to monitor developments related to vaccination and provide updates on our website. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team
[1] https://www.thestar.com/news/gta/2020/12/10/yes-the-mask-stays-on-after-you-get-vaccinated-heres-why.html
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.
