Mandatory vaccination policies the way of the future
Inoculation is best protection we currently have against COVID-19
By David Reiter
Health & Safety
At the start of fall 2020, we were coming out of the first summer of the pandemic with the muted hope that we would soon be able to return to some sense of normalcy.
However, our optimism was quickly dashed when the second wave began. What followed was a very difficult winter and spring, characterized by lockdowns and the hectic, somewhat confused, and extremely limited introduction of vaccines.
Fast forward one year later, and we’re once again filled with a hesitant sense of hope. To be fair, though, a lot has changed. Vaccines are now readily available, and almost 70 per cent of Canadians have been fully vaccinated. Maybe, just maybe, things can start getting back to normal.
In trying to make that happen, many employers have begun implementing mandatory vaccination policies that will require their workers to return to the workplace, fully vaccinated.
The underlying rationale is straightforward. Vaccinated employees are less likely to become infected and to transmit COVID-19. It simply is a reasonable precaution to take for the protection of the workplace.
Many are asking, is it legal? The answer is — yes. And, not only is it permitted, arguably it’s required.
Legality of mandatory vaccination policies
Employers must take every precaution reasonable to protect their workers.
That is set out in the Occupational Health and Safety Act, R.S.O. 1990, c.O.1. Given that, and recognizing that workplaces throughout the pandemic have been flashpoints for transmission, surely employers are reasonably required to take those steps that are available to them to limit transmission, including requiring workers to be vaccinated.
As well, the regulations under the Reopening Ontario (A Flexible Response to Covid-19) Act, 2020, S.O. 2020, c.17, require businesses to operate in compliance with recommendations, instructions and/or advice that are given by public health officials.
To that point, thus far, the chief medical officer of health for Ontario has directed that hospitals and some related services implement vaccination policies, and, Toronto’s chief medical officer of health has issued a strong recommendation that all local businesses do the same.
More such recommendations and directions are sure to follow, and as they do, more businesses will become legally obligated to implement vaccination policies.
Challenges of implementing a vaccination policy
If vaccination policies are to be effective, they should provide that workers cannot attend work in person unless they provide proof of vaccination. Policies should also provide that those who do not vaccinate must attend an educational seminar that speaks to the dangers of being unvaccinated in the workplace.
However, as with all policies, there are going to be challenges with implementation.
For example, some workers may refuse vaccinations on principle. In that situation, employers will either have to accommodate those employees by allowing them to work remotely, or if that is not agreeable or possible, they may need to be terminated.
Caselaw has not yet developed on this point, and it may well be that terminations will have to be without case, with notice.
Other cases may prove still more challenging. For example, some workers may not medically be able to be vaccinated, which will trigger human rights obligations. In those cases, accommodation may have to be provided.
However, what will constitute a medical exemption? Ontario’s rules for its vaccine certificate program are that only those with an allergy to an ingredient in the vaccine — verified by an allergist — or those who suffered from myocarditis or pericarditis after their first dose should be exempt.
While this program may provide guidance, what may justify exemption under mandatory workplace vaccination policies has yet to be determined. All we know for certain is that with proper documentation, appropriate accommodations should be made.
Similar concerns may also arise with respect to employees who refuse vaccination on religious grounds.
Considering privacy concerns
Another concern related to the implementation of vaccine policies concerns the privacy of workers’ vaccination information.
Recognizing that, any mandatory vaccination policy should also spell out how information will be stored, for how long, who will have access to it, and how it will be destroyed.
As well, it should also set out how third-party information requirements will be dealt with.
For example, if third parties (i.e. suppliers) are attending at the workplace — how will their information be collected and dealt with?
Similarly, if a worker’s duties include attending at third-party sites, worker vaccine information may have to be shared in order to meet the third-party’s policy requirements.
In planning for such cases, the detail of how information will be shared and protected should also be addressed in the policy.
The way of the future
Putting aside the challenges of developing and implementing a mandatory vaccination policy — all indications are that they are the way of the future.
After all, vaccination offers the best protection we currently have against COVID-19 in the workplace, and the implementation of vaccine policies is legal and necessary.