Across Canada, government mandates regarding masking and vaccination are lifting. In Ontario, vaccine passports are no longer required (as of March 1) and masking mandates have been lifted, effective March 21. Employers who previously rolled out vaccination policies may be wondering what these government changes mean for their workplace policies.
The shift in governmental approach toward Covid-19 safety protocols will likely mean that employers looking to justify invasions of employee privacy — for example, disclosing vaccination status — based on reasonable health and safety concerns will be less able to do so. This is because the consensus, as evidenced by the change in government mandates, is that maybe this need is not based on a legitimate health and safety concern. This may vary depending on the workplace but even the employee vaccination mandate for long-term care homes, which was legally required, has been lifted. There is no law stating an employer cannot have a vaccination mandate or a mandatory masking policy but courts may be less likely to uphold these as government mandates disappear.
Employers should expect to face challenges from employees on both sides of the political divide on these Covid-19 safety issues. This is especially likely in workplaces that moved to a mostly or totally remote environment over the past two years.
Many employees may feel anxious returning to the office in-person and this may be particularly so if the employer does not have a policy that requires employees be vaccinated or masked. On the other hand, employees who are less concerned about Covid-19 may feel irritated that they have to wear a mask at work when they don’t have to in other public places like the grocery store, and they may resist the invasion of privacy that a vaccination policy entails. Gaining compliance among this group of employees could be an issue.
An employer’s duty under Ontario’s Occupational Health and Safety Act is to take every precaution reasonable in the circumstances for worker safety. However, what’s reasonable will vary.
Employers should be mindful of the need to balance workplace safety and invasions of employee privacy. While Ontario does not have any specific legislation related to employee private information, common law privacy principles dictate that any invasion be reasonably justified and for a clear purpose.
Employers should also expect accommodation requests, so know how to approach them. This will most likely be true for those that require employees to come back to the office after a long period of working remotely. Requests for accommodation that are legitimately related to human rights issues must be met up to the point of undue hardship.
Hilary Page is a lawyer at SpringLaw. Hilary brings a diverse legal background to her employment law practice. She has experience with a wide variety of workplace issues, including wrongful dismissal, constructive dismissal, human rights matters and workplace compliance issues.