“We have seen private employers take a cautious approach to reopening”: Vaccinations and the workplace

“A cautious approach to reopening”: Vaccinations and the workplace

TORONTO — Travel is gradually reopening and the industry is slowly getting back on its feet. For many companies, more people are returning to work in-person at bricks-and-mortar offices and travel agencies.

With Canada’s strong COVID-19 vaccination rate, one of the highest in the world, the return-to-office process will be a no-brainer for most.

However some still have questions about vaccination policies and the workplace.

Travelweek re-connected with Goulart Workplace Lawyers to ask what they’re hearing now from Canadian employers, and employees, when it comes to COVID-19 vaccination policies.

Ruben Goulart, Partner, Goulart Workplace Lawyers and Jennifer Philpott, Associate, Goulart Workplace Lawyers, answered our questions for this latest Q&A.

Q. Return-to-workplace plans are now ramping up in earnest, and many employers appear ready to recall workers in the coming weeks, if they haven’t already. Can you highlight some of the recent key changes in Ontario with respects to vaccination and masking protocols?

A. “There have been several critical changes to public health measures since the start of 2022 in Ontario. Most recently, Ontario suspended its use of the COVID-19 vaccination passport program and the mandatory mask requirement for most workplaces. That being said, we have seen private employers take a cautious approach to reopening, including requiring proof of vaccination beyond the suspension of the passport program and continuing to enforce the use of personal protective equipment (PPE) for employees.

“Last year, Ontario introduced legislation that required businesses and organizations to comply with any ‘advice, recommendations, and instructions’ issued by the Chief Medical Officer of Health or by a medical officer of health. In several municipalities, including Toronto, this extended to establishing COVID-19 vaccination policies and ensuring compliance with same.

“For most employers, the content of these policies has been relatively flexible but may include requiring proof of vaccination, medical exemptions, and timelines to become ‘fully vaccinated’ as defined by the policy.

“Notably, this legislation remains in force, even with the end of the vaccination passport program and mandatory mask requirement for workplaces.

“Consequently, employers will still need to comply with directives from public health officials relating to COVID-19.

“Given that  new variants of COVID-19 continue to emerge, it would not be surprising if certain public health measures are reinstated if Ontario experiences a surge in cases.”

Q. Will ‘fully vaccinated’ mean three doses instead of just two?

A. “Neither the Ontario or federal governments have shown any indication of changing the definition of ‘fully vaccinated’ to mean three doses of a COVID-19 vaccine that is approved by Health Canada.

“Dr. Theresa Tam, Canada’s chief public health officer, recently  commented that expanding vaccination mandates to cover a third dose could pose difficulty, particularly because eligibility for a third dose varies amongst age groups and those who contracted omicron have been advised to delay their booster shots. Consequently, it does not appear that the definition of ‘fully vaccinated’ will change any time soon.”

Q. Why is the topic of mandatory vaccinations a bit of a minefield for employers and employees, and while the vast majority of Canadians are fully vaccinated, do you have any tips for employers looking to broach mandatory-vaccination discussions with employees?

A. “To be clear, most employers in Ontario were not required to mandate vaccination in their workplaces. Rather, they were required to implement polices to address their individual approach COVID-19 vaccinations in the workplace, including collecting information on worker vaccination status, whether vaccination would be required, and accommodation for unvaccinated workers.

“We have seen private employers take a cautious approach to reopening”: Vaccinations and the workplace

“As we explained in August 2021, there is a lot of confusion around ‘mandatory policies’ and ‘mandatory vaccination’. Employers cannot force employees to be vaccinated but they may elect to establish vaccination policies that apply to their workers.

“Vaccination is a polarizing topic given that some individuals feel it impacts their bodily autonomy and choice. Employers have to balance individual employee rights with the health and safety of their entire workforce, including meeting their obligations under applicable health and safety legislation.

“Employers should ensure that their vaccination policies clearly outline their expectations for workers, provide accommodation where necessary under human rights legislation, and give employees sufficient time to become ‘fully vaccinated’ (two doses of a COVID-19 vaccine approved by Health Canada).

“As always, employers who are considering implementing a vaccination policy for COVID-19 should contact an employment lawyer to ensure that the policy is appropriate, reasonable and does not infringe on workers’ rights.”

Q. Is there anything the travel industry should know about the vaccination passport programs from the provinces and federal government?

A. “Workers in the travel industry and travellers to Canada should be aware of requirements for vaccination that remain in force in Canada.

“While Ontario has suspended the use of its vaccination passport program, the federal government continues to mandate vaccination for all public servants, RCMP employees, and employees in federally-regulated industries, including air, train, and transportation.

“The federal government’s policy on COVID-19 vaccination is coming up for review on April 6, 2022. Dr. Theresa Tam recently stated that the federal government is reviewing these programs and that changes may follow.

“Currently, vaccination against COVID-19 remains a requirement to travel within and to depart from Canada. For travelling within Canada, travellers must show proof of vaccination to board flights and trains. Those travelling to Canada from another country must be fully vaccinated in accordance with Health Canada’s policies. Cruise lines that sail in Canadian waters must have all passengers fully vaccinated against COVID-19 (with limited exceptions) and require strict testing and reporting requirements.

“We expect that these requirements will continue to be an integral part of travel into 2022 and likely 2023 as the world ‘reopens’.”

Ruben Goulart and Jennifer Philpott can be reached at rgoulart@goulartlawyers.ca and jphilpott@goulartlawyers.ca, respectively. The team at Goulart Workplace Lawyers is experienced in advising employers on vaccination policies and can be reached at (289) 856-1100.

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