The lifting of COVID-19 mandates and resulting impact on workplace policies
By John Hyde
Government restrictions across Canada have, for the most part, been lifted.
The Ontario government has gone so far as to recently announce that it has no plans to reintroduce mandatory masking, even as a sixth wave of COVID-19 is underway. The general consensus appears to be that it is time to accept the reality of living with COVID-19 and move on.
In the “before times”, a workplace policy pertaining to medical interventions or masking would be heavily scrutinized and justified only in the most exceptional of circumstances. That all changed with COVID-19, as workplace policies were buttressed by legislative mandates. With mandates now mostly lifted, to what extent can employers still justify mask and vaccination policies?
Health and safety is still as important as ever
Even absent government decree, employers still have statutory health and safety obligations. Those obligations require employers to maintain a safe workplace and take all necessary precautions. Just because the government is no longer mandating COVID-19 safety measures, that in and of itself does not make the threat of COVID-19 any less real. On that basis, employers are within their right to continue maintaining such policies for health and safety reasons. Additionally, the government of Ontario has specifically stated that businesses can choose to implement their own rules and restrictions.
A workplace that does not maintain a masking policy is potentially vulnerable to allegations that it did not take necessary health and safety precautions. That is particularly if the workplace is a setting susceptible to COVID-19 due to physical proximity between workers, poor ventilation, having an older workforce, or other risk factors. In such settings, not only is an outbreak more likely, but not having a mask policy in place is likely to be unfavourably looked upon in assessing an employer’s culpability.
Human rights legislation still relevant
Canadian human rights legislation has made it clear that the “personal choice” not to get vaccinated, particularly when based on misinformation, is not a protected human right.
Complaints that vaccination goes against one’s “religious beliefs” or “creed” are unlikely to succeed if they are based on a singular belief. The belief system has to have some connection to an organization or community that professes a shared system of belief. Simply exclaiming that one’s belief system precludes vaccination, without proof that such a belief is widely held or professed by the community, is unlikely to succeed.
That said, human rights legislation continues to apply to those who are legitimately unable to receive the COVID-19 vaccine for medical or disability-related reasons. Employers who wish to maintain a vaccination policy should continue to be prepared to consider a range of accommodations for such individuals.
The return of personal autonomy
The primary tension with mandatory vaccination has always been between collective health and safety and the freedom to make one’s own medical decisions. When human rights tribunals released their official positions on mandatory vaccination, the consensus view on vaccination was that public health and safety outweighed personal freedom, albeit with various exceptions. It was also a time when the federal government mandated vaccination for its workers, as did provincial governments for many sectors, such as health and long-term care.
Recently the view regarding the extent to which being vaccinated protects others has changed, coupled with the lifting of vaccine mandates.
Notwithstanding, numerous arbitration decisions have considered the reasonableness of a mandatory vaccination policy and employers have generally prevailed, although each case turns on its own facts.
In a decision from earlier this year, the arbitrator pointed to the continued risk of COVID-19, and uncertainty regarding omicron, in upholding a vaccination policy.
In contrast, in another decision from earlier this year, the arbitrator found that a mandatory vaccination policy was unreasonable in the circumstances. He noted that many of the employees could still work from home, as was their right under their collective agreement. He noted that health and safety still matters, but the employer did not provide an analysis of the workplace dangers or hazards in this case.
As the COVID-19 situation continues to evolve, the reasonableness of a vaccination policy will continue to be very context-specific. Employers who wish to continue enforcing restrictions, or implement them for new employees, should consult with experienced employment law counsel.
John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.