TORONTO — With more businesses eyeing at least a partial reopening for offices this fall, and with COVID cases fuelled by the delta variant on the rise, companies find themselves navigating unexpected questions on hot-topic issues like COVID vaccination requirements for employees.

Just a few months ago priority #1 was getting shots into arms. Now with more than 70% of eligible Canadians fully vaccinated, the focus has shifted to getting on with a new-normal. For many industries, including airlines and the rest of the transport sector, that includes mandatory COVID vaccinations.

As announced by the Canadian government last week, just days before the election race took off, federal employees as well as workers in federally regulated industries must be fully vaccinated against COVID-19 by the end of October. Air, interprovincial rail and cruise ship passengers must also be vaccinated against COVID-19.

Other sectors including health care and education could see COVID-19 vaccination requirements for employees, or regular testing.

Meanwhile more and more big-name companies in the U.S. are implementing mandatory vaccination policies, to varying degrees, from airlines (United, Frontier Airlines, Hawaiian Airlines and more) and beyond (Cisco, Facebook and the Walt Disney Co., among many others).

But what about here in Canada, where labour laws differ from those in the U.S.?

Ruben Goulart, Partner, Goulart Workplace Lawyers

We circled back to 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 Q&A.

Q. What are you hearing from clients now that more and more workplaces are tackling the tough topic of mandatory COVID vaccinations? Is there a lot of confusion?

A. “We have received many inquiries from employers interested in implementing vaccination policies. Employers are concerned about balancing their obligations under health and safety legislation to keep their workforce safe, while also respecting individual human rights. Employers end up placing themselves on a spectrum in terms of their position relating to vaccinations in the workplace – with some employers simply ignoring the issue, while others electing to make vaccination a “condition of employment”.

“There is a great deal of confusion about vaccination policies in part because the media conflates the terms ‘force’ with ‘mandatory’. While an employer cannot force its  employees to receive a COVID-19 vaccine, they may elect to mandate vaccination policies, depending on the health and safety considerations of their workplace. Employers have some flexibility in terms of how to respond if employees simply refuse to vaccinate if their reasons are unrelated to human rights considerations.

“Further, most major news outlets address vaccination policies through the lens of American labour law, which generally favours the rights of employers and differ significantly from Canadian labour law.”

Q. It seems like in a relatively short time we’ve gone from workplaces saying they wouldn’t require employees to get vaccinated, to now saying either that yes, they would, or that they would seriously consider it. Do you think the delta variant and concerns about a fourth wave and more lockdowns have been the game-changers?

A. “Absolutely. In Ontario, we are in the middle of a fourth wave of the COVID-19 pandemic, and case counts are the highest they’ve been in months. The province is expected to halt further reopening plans until further notice. We’re seeing similar trends across Canada. Despite the tremendous efforts of nation-wide vaccination campaigns, the pandemic remains a developing situation and employers need to be flexible amidst ongoing uncertainty. Health Canada has reported that approved COVID-19 vaccinations are effective at preventing severe illness, hospitalization, and death from the alpha and delta variants of concern. It’s logical that employers who were unsure about vaccination policies earlier on in the pandemic may want to implement them now.

“Given proposed changes at the federal level (for federally regulated employees for example), more employers may also follow the federal lead, and proceed to mandate vaccination in their workplaces.”

Jennifer Philpott, Associate, Goulart Workplace Lawyers

Q. When we touched base back in March 2021, the message was essentially that employers can’t compel vaccinations for employees. Is that still the case? 

A. “As Jennifer Philpott commented in March, mandating COVID-19 vaccinations in the workplace remains a polarizing issue. To date, mandatory COVID-19 vaccination policies have not been the subject of a legal challenge. While employers may choose to make vaccination ‘mandatory’, they should tread carefully. An argument could be made that mandatory vaccination is appropriate in certain sectors or industries, such as healthcare and travel. So far, we have worked with employers with varying degrees of comfort in this area. Some are interested in mandatory policies, while others prefer policies that strongly encourage their employees to be vaccinated.”

Q. In our March 2021 Q&A you mentioned that some unionized environments have mandated influenza vaccination requirements. Could that become a reference point going forward if there’s still no precedent for mandated COVID vaccinations requirements?

A. “Yes, those precedents could become a reference point going forward. We anticipate that at some point a mandatory vaccination policy will be challenged, given that COVID-19 vaccinations have become such a divisive issue for Canadians.”

Q. Could the government (any level) enforce vaccinations for employees in workplaces?

A. “Yes, governments at any level can – have started to – implement mandatory vaccination against COVID-19. As with private employers, these policies may be justified where workplace health and safety considerations necessitate such measures.

“The Government of Ontario recently announced that within the coming weeks, vaccination policies must be implemented for workers in certain sectors, including certain healthcare, public education, and other high-risk settings. It would not be surprising to see this directive expanded across other sectors soon.

“As mentioned, the federal government recently announced its intention to require all federal employees and employees working in some federally regulated industries, including airlines, railways, and marine transportation, to be vaccinated by no later than the end of October 2021. Accommodation will be in place for individuals who cannot be vaccinated due to medical reasons. The federal government also announced that it expects employers in other federally regulated sectors (i.e., banking, broadcasting, and telecommunication) to follow suit.”

Q. Are you hearing from employees who don’t want to return to a workspace unless everyone is vaccinated, and do they have any recourse?

“Employees should always bring COVID-19-related concerns to their employers’ attention. However, workers who are concerned about the vaccination status of their colleagues have limited recourse. Employers are not obligated to accommodate employees who do not want to work with unvaccinated colleagues. For privacy reasons, an employer cannot disclose workers’ vaccination status without their informed consent.

“To ensure the safety of the workplace and alleviate any concerns that employees may have, we recommend that employers consider policies on vaccination and the use of personal protective equipment. These policies should be communicated to employees with as much notice as possible, with an opportunity for employees to ask questions if necessary. By implementing and enforcing such measures, employers can reassure their employees that public health guidelines are being followed.

“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.”

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) 856-1108.