Shift towards mandatory vaccine policies in Canada

Now that COVID-19 vaccines are widely available across Canada, many employers are considering whether to make the vaccination mandatory for employees.

As it currently stands, the federal and provincial governments have not made COVID-19 vaccination mandatory for all employees; however, certain jurisdictions have mandated vaccination policies for workers in specific fields. For example:

• Federal: On August 13, 2021, the Government of Canada announced it will require all federal public servants to be fully vaccinated by the end of September 2021.  In addition, the federal government will require employees in the federally regulated air, rail and marine transportation sectors to be vaccinated by the end of October 2021.
• Ontario: Ontario issued a directive on August 17, 2021, mandating hospitals, home and community care service providers to have a COVID-19 vaccination policy, which requires employees, staff, contractors, students and volunteers to provide proof of full vaccination or written proof of a medical reason for not receiving vaccination. Individuals who have a medical exemption to vaccination are required to undergo regular antigen testing at intervals identified by the employer, but at a minimum once per week.
  
  Further, on August 24, the Ontario government amended O. Reg. 364/20: Rules for Areas at Step 3 and at the Roadmap Exit Step under the Reopening Ontario (A Flexible Response to COVID-19) Act to include obligations to comply with directions from health officials about COVID-19 vaccination policies. Since that time, medical officers of health in a number of public health units have given advice regarding the implementation of vaccination policies.

• British Columbia: British Columbia announced on August 12, 2021, that vaccinations will be mandatory for all long-term care and assisted living workers effective October 12, 2021. This requirement will apply to volunteers as well as personal service workers who must enter the facilities. On September 13, 2021, the province announced it will extend the vaccination requirement to anyone who works in a health-care facility, which is anticipated to take effect October 26, 2021.
• City of Toronto: The City of Toronto announced it will require all of its employees to confirm their vaccination status and provide proof of vaccination by no later than September 13, 2021. Employees who fail to show proof of vaccination by September 13 will be required to attend mandatory education on the benefits of vaccination, and then given until September 30, 2021, to provide proof of their first dose of the vaccine.
• Saskatchewan: The province will require all employees of all Government of Saskatchewan ministries, crown corporations and agencies to be fully vaccinated by October 1. 
• Quebec: Effective October 15, 2021, all health and social services workers, whether in close contact with patients or not, must be vaccinated against COVID-19 unless they have a contraindication to this effect. All workers subject to mandatory vaccination will be required to prove they are fully vaccinated. Without such proof, workers will be reassigned to other duties, where possible. If workers cannot be reassigned or if they refuse to be vaccinated, they will not be allowed to return to work and receive any compensation.

In addition, a number of provinces have announced they will be using a vaccine passport system, which will require citizens to provide proof of vaccination in order to access certain establishments, businesses and event venues. In line with this shift, a number of private sector employers have also publicly announced they will be implementing vaccination policies that require employees to provide proof of vaccination.

With this trend towards adopting mandatory COVID-19 vaccination in the workplace, it is important for employers to keep in mind the following before implementing such policy:

• Health and Safety: Under occupational health and safety legislation, employers are required to take reasonable steps to ensure the health and safety of their employees.  For some employers, a mandatory vaccination policy may be advisable given their duties under occupational health and safety legislation.
• Privacy: The collection and use of employee personal information, in particular employee health and medical information, raises privacy concerns including the requirement to establish that the collection and use is reasonable in the circumstances. Requirements vary by jurisdiction. For example, Ontario does not currently have privacy legislation protecting information employers collect directly from employees.
• Collective Agreement Terms: Employers who are unionized will need to consider the terms of their collective agreements when implementing a vaccine policy.
• Human Rights: As in implementing any policy, employers must consider whether individual employees may require accommodation based on a protected ground pursuant to human rights legislation. Where an employee remains unvaccinated due to a protected ground, such as a medical exemption, employers will have an obligation to accommodate that employee. The appropriate accommodation will vary depending on the circumstances of the given case. 

Overall, it does appear there is a growing trend toward implementing vaccination policies in the workplace. Employers looking to implement such a policy should keep in mind that there is not a “one-size-fits-all” approach to vaccination policies, and as such it is recommended that employers obtain legal advice before implementing a vaccination policy.