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Mandatory Vaccinations: Answers to Employers’ Most Pressing Questions

16-Sep-21

by McLennan Ross Labour & Employment Group

Employers and employees are struggling to figure out their respective rights, entitlements, and obligations in protecting against the spread of COVID-19 in the workplace. With the emergence of new COVID variants, the new restrictions in Alberta (starting September 16, 2021) and the growing discussion of mandatory vaccination, do employers have enhanced duties to protect employees from COVID-19?

We have seen commentary suggesting that employers have an elevated duty with respect to COVID-19 over and above the general obligation to keep their workplace safe and free from hazardous substances. We believe some of these concerns are overstated. A distinction must be drawn between employers introducing a hazardous substance in the workplace and a hazardous substance being brought into the workplace through no fault of the employer.

The following is an overview of what we at McLennan Ross LLP believe to be an employer’s obligations to its employees in the workplace with respect to COVID-19, presented through Questions we are receiving and our Answers. This information supplements previous guidance we provided on January 14, 2021 and February 10, 2021. We do caution that all circumstances are fact specific; you should not rely on this general legal information as a definitive statement of all employers’ obligations to employees. Specific legal advice for each employer unique to that employer’s workforce and workplace is always preferred and should be sought.

Question 1: What impact do the new Alberta restrictions have upon employers?

First, it is important that employers observe these new restrictions. Second, it is noteworthy that the Alberta government has not implemented vaccine passports and has instead implemented a voluntary Restriction Exemption Program, which has the following elements:

  • Require proof of vaccination or negative rapid test result to continue operating as usual, or
  • Follow capacity and operating restrictions.

Although these features of the Restriction Exemption Program relate to customers, not employees, they suggest that it may not be reasonable for employers to mandate employee vaccinations without the option of providing a negative rapid test result.

Question 2: If government COVID-19 protocols are removed, do employers continue to have any obligation to their employees with respect to the possible spread of COVID-19?

Employers have a general obligation to provide employees with a safe workplace. This obligation does not translate into employers guaranteeing that an employee will not contract COVID-19 at work, or any other illness for that matter. If an employer did not cause the illness to be in the workplace, it would be difficult to foresee a fact circumstance where an employer would be held liable for an employee bringing COVID-19 to work and infecting other employees. An employer does not have a positive obligation to prevent every possible risk of COVID-19 entering the workplace, nor is it reasonable to expect employers to guarantee safety from COVID-19. Employers do have an obligation to identify hazards in the workplace and take reasonable steps to manage and reduce those hazards.

Question 3: What can an employer do to keep the workplace free from COVID-19?

Again, each workplace is fact specific. Although an employer has no current obligation to do anything specific, it is probably in an employer’s best interest to have protocols in place to assure its employees that they are working in a safe environment.

  • Employers may want to ask their employees if they have been vaccinated. There are clear privacy considerations in requesting such medical information from employees, and employers must be able to satisfy the Privacy Commissioner that the information being requested is legitimately required for the safe operation of the business. Part of this assessment depends on any unique risks associated with that business, its workforce, and clientele. Part of this assessment depends on how the collected information will be used.
  • Private sector employers in Alberta can collect personal information about an employee upon notice to the employee, provided the collection is reasonable for the purposes for which it is being collected and the information is related to the employment relationship. If the request for vaccination status is in order to require the employee to get vaccinated, it is not clear whether that purpose is reasonable.
  • Truly voluntary disclosure can be tracked, but the personal information must still be safeguarded. Anonymous employee surveys of vaccination status are also acceptable because they do not collect personal information about an identifiable individual.
  • If the workplace is one where employees are working in close proximity and an employee infected with COVID-19 could indeed transmit the virus to other employees or clients, an employer can look at requesting vaccination status, either individually or anonymously through a blind survey, for an indication of the number of employees in the workplace who have been vaccinated.
  • If the business does not have employees who are working in close proximity with each other and there are no greater risks associated with the employer, other employees, or those served by that employer, it is questionable whether privacy legislation would be interpreted in a way that justifies a carte blanche request of vaccination status.
  • If an employer believes that it needs to implement individual protocols, it should address its mind to whether it needs to request vaccination status information or whether it can appropriately mitigate the risk of spreading COVID-19 through other means, such as working from home, mandatory mask requirements, or social distancing. A relevant consideration will be how the employer has managed such risks throughout the pandemic.
  • Employers should also consider the risks of COVID-19 within their operations. That requires a contextual analysis. For instance, a long-term care facility would have a different risk profile than an office or plant environment with limited public access.
  • One approach we are seeing that seeks to balance safety and privacy issues is to require employees to either be vaccinated or, if not vaccinated or preferring not to disclose vaccination status, to provide proof of a negative COVID-19 test on some regular basis. Again, the recent measures announced by the Government of Alberta are consistent with this approach. [See Questions 5 and 6 for further considerations.]

Question 4: Can an employer require an employee to disclose if he or she has COVID-19?

An employer does have the obligation to create a safe workplace. Similarly, an employee has an obligation to ensure that he or she is fit for work and, by coming to work, is not placing other employees in danger. If an employee does knowingly contract COVID-19, that employee is clearly not fit for work. A policy that obligates employees who knowingly contract COVID-19, or are in close contact with someone who has contracted COVID-19, to report that information to the employer and not attend at work for the quarantine period mandated by the Government, should be permissible. If an employee does not honour this policy and decides to come to work despite contracting COVID-19, that employee can be terminated for failing to follow a clear, enforceable, and reasonable workplace policy.

It is certainly reasonable for employers to screen employees for COVID-19 symptoms before entering a workplace, and such requirements have been common from an early stage of the pandemic.

Similarly, it is probably permissible under the current circumstances for employers to require employees to provide proof of a negative status before entering a workplace.

Question 5: Can an employer mandate vaccination as a condition of work?

Although some media have reported quotes from lawyers suggesting that vaccination as a condition of employment is permissible, we are not as confident.

The primary issue with requiring an employee to disclose vaccination status is whether it is reasonable employee information or an invasive infringement of privacy. It is clearly a request for the disclosure of personal health information. At this point, the various privacy officers across Canada have provided preliminary opinions that disclosure of vaccine status would rarely be reasonably required for the operation of a business

Despite this, we have recently seen a number of large businesses and educational institutions across Canada and the United States implementing policies that require employees to be vaccinated in order to attend at work. As discussed above, many of these policies also provide that a recent negative rapid COVID-19 test will suffice as well. As far as we know, none of these polices has been tested in a Canadian court.

As stated above, we believe it highly likely that an employer attempting to enforce such a policy must show that the personal information being disclosed is reasonable and necessary. The Privacy Commissioners have indicated that a large factor in considering the reasonableness of the request will be whether less intrusive policies, which do not require the disclosure of personal information, would have been sufficient.

Having said the foregoing, with the changes to COVID-19 rules being introduced by the Alberta government on September 16, 2021, and growing public sentiment in support of vaccine passports, the preliminary opinions provided by the Alberta Privacy Commissioner may change.

Some factors employers may consider in assessing whether to mandate vaccination as a condition of work include:

  1. whether the employer is subject to any federally-mandated vaccination requirements (e.g. federally regulated employers in the air and rail sectors);

  2. whether employees are engaged in public service, particularly to vulnerable segments of the population (e.g. healthcare settings);

  3. the extent to which employees are already vaccinated, the impact of that, and the related risk, in the workplace;

  4. whether employees work closely with others or are isolated;

  5. whether the employer can provide a safe environment if employees are practicing COVID-19 preventive measures;

  6. whether employees work with or are around others who have compromised immune systems;

  7. whether employees can work from home.

Question 6: What are the risks to employers of mandatory vaccination programs?

There are different legal risks associated with mandatory vaccination programs. First, as discussed above, there are privacy law issues and the risk of a privacy complaint. Second, there are human rights risks, though these can be addressed by accommodating employees who have a protected basis for refusing vaccination, such as disability or religious belief. Third, for non-union employees, there is a risk of a constructive dismissal claim. Fourth, for union employees, there is a risk of a grievance alleging that the mandatory vaccination requirement is unreasonable or contrary to the collective agreement. There are also practical risks, including how such programs impact employee morale, recruitment, and retention.

Despite these risks, we increasingly find ourselves assisting employers who have decided to move forward with some form of vaccination program. While corporate citizenship considerations understandably play a role in those decisions, the extent to which public sentiment will influence how adjudicators decide legal disputes arising from mandatory vaccination programs remains to be seen.

Question 7: Can an employer be held liable if an employee enters the workplace and gives COVID-19 to other employees?

In Alberta, we do not foresee an employer being held liable for an employee coming to work and spreading COVID-19 without the employer’s knowledge. As we stated above, employers are not expected to guarantee that an employee will not contract an illness at work. If an employer receives notification that an employee has or may have COVID-19 and still permits that employee to come to work, that employer may be held negligent in the operation of its business. There may also be Workers’ Compensation considerations as well, and the Workers’ Compensation Board has in some cases allowed employee coverage for contracting COVID at work (depending on the nature of the workplace and the presence of a COVID-19 outbreak in that workplace). If WCB coverage applies, it protects against such employees suing their employers. An employer has the obligation to make reasonable efforts to ensure that its workplace is safe and illness free. As long as it meets that requirement, we do not expect an employer will be held liable for an innocent transmission of COVID-19 in the workplace.

Question 8: Can employees refuse to attend work if an employer does not require mandatory vaccination for all employees?

Employees are entitled to refuse work that is dangerous. Although fact specific, it is doubtful whether the failure to mandate vaccinations creates a dangerous workplace. As such, employers should be able to require employees to attend work, even if there is not a mandatory vaccination program in place. This issue, however, is fact specific. Relevant to this question would be the presence of any added risks and the ability to work safely in that workplace during the pandemic (without mandatory vaccinations).

Question 9: Can employees refuse to come to work and decide to work from home if they were able to do so during the pandemic?

Given the new Alberta restrictions requiring people to work from home unless the employer has determined a physical presence is required for operational effectiveness, the current answer is clearly Yes.

What about after the work-from-home direction is lifted? Subject to any contractual obligations (whether a Collective Agreement or an individual employment agreement), and absent human rights accommodation considerations, as a general statement the employer gets to dictate where employment is to be performed. If an employer determines it wants its employees to return to the office, it can reinstate that condition of employment so long as it also takes reasonable steps to provide a safe and healthy work environment. An employee can choose to honour his or her contractual obligations and follow the employer’s direction. If the employee decides to continue to work remotely, the employee is free to quit and try to find other employment which allows working remotely.

Clearly a lot of employers believe that notwithstanding the ability to operate remotely over the past year and a half, the business will be more successful if the employees return to the office. Separate and apart from an employer’s legal rights, employers may want to be pragmatic in responding to employees’ requests to continue to work remotely. In particular, there may be a greater ability to work from home if the alternative is mandatory vaccination. Given the recent Alberta government announcement that mandatory work-from-home measures are in place unless the employer has determined a physical presence is required for operational effectiveness, working from home will be required for many workplaces regardless of an employer’s preference. Like many issues, the answer to this question is clearly evolving.

Question 10: Are employees entitled to WCB coverage if they experience an adverse reaction to a COVID-19 vaccine?

The Alberta Workers’ Compensation Board has stated, “If a worker has an adverse reaction to a COVID-19 vaccination, they are entitled to compensation when the immunization is a mandatory condition of employment.”

Conclusion

The topic of mandatory vaccination is a sensitive and evolving issue. Employers should consider the issues in their operations, as well as the need, risks, philosophy, and values associated with mandatory vaccination. Caution is required. Any program should be carefully tailored to follow all public health guidance and also reflect the individual circumstances in each place of employment.

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