With more businesses recalling employees to the office, employers are grappling with what to do if workers do not receive the Covid-19 vaccine.
Are employers entitled to mandate vaccines? Can they ask an employee to disclose their vaccination status?
As a starting point, employers should be mindful of their general duty to take reasonable steps to protect the health and safety of their employees from workplace hazards. This duty became especially relevant during the onset of the pandemic. Before the widespread availability of vaccines, employers implemented a variety of Covid-related safety measures at work. For instance, they facilitated remote workstations, provided personal protective equipment to employees, mandated masks in the office, and integrated Plexiglass barriers and hand sanitizing stations.
Employers are now contemplating whether to add Covid-19 vaccination, in some form, to their workplace policies, as part of their general duty to ensure employee safety. This has come under consideration due to the widespread availability of the vaccine and a growing societal expectation that eligible persons be vaccinated.
In addition to the duty to keep employees safe from workplace hazards, employers in Ontario are obligated to accommodate various rights that are protected under the province’s Human Rights Code. These include age, gender, disability and/or creed. As such, employers may find some employees cannot receive the Covid-19 vaccine because of a protected ground under the Code. This means that when drafting and implementing a mandatory Covid-19 vaccine policy, employers must balance respecting their employees’ legal rights against their duty to keep them safe from the virus.
Rapid antigen tests are now readily available for purchase to screen for Covid-19 infection in asymptomatic individuals. In Ontario, an increasing number of businesses are utilizing the technology for unvaccinated employees who require proof of a negative Covid-19 test to attend work in person. In certain situations, rapid antigen testing may be a viable option to manage the conflicting employer-side obligations and employee-side rights under the Code.
The rules, policies, directions and laws pertaining to Covid-19 are constantly evolving as new information becomes available. Moreover, many of these mandates are unsettled or untested by the courts, so there is an absence of clear guidance on this issue. While there may be effective strategies available to employers to manage employees that are unable to abide by Covid-19 vaccination policies, these will be specific to each business and employee. As such, employers should consult with an experienced employment law lawyer who will independently assess the relevant concerns and unique circumstances of each business.
Julia Chumak is an articling student at Lawrence, Lawrence, Stevenson LLP, a Brampton, Ont.-based law firm.