Back to the Office, Back to Reality – Part 3

Context is Key: What Will Happen to Mandatory Vaccination Policies?

By David Contant of Merovitz Potechin LLP on Tuesday April 19, 2022.

In Part 1 of our Back to the Office series, we discussed the rights and responsibilities of employees and employers surrounding a return to in-person work. In Part 2, we examined the rules governing mask mandates in the workplace. In Part 3 of our series, we will look at mandatory vaccination policies in the workplace.

Ontario and Ottawa’s mandatory vaccination requirements

As of March 1, 2022, Ontario no longer requires businesses and organizations to check proof of vaccination.

On April 4, 2022, the City of Ottawa ended its mandatory vaccination requirement for most employees and contractors. Vaccination is still required for workers in high-risk settings, for example employees working in long-term care homes.

As of now, the government plans to remove all mandatory COVID-19 safety measures in all workplaces by June 11, 2022. This includes long-term care and retirement homes, heath-care settings, and other settings where vulnerable populations are serviced.

Does this mean that all mandatory vaccination policies are now moot?

No. Employers in Ontario continue to have an ongoing duty to take reasonable precautions to protect their workers pursuant to the Occupational Health and Safety Act. Several recent labour arbitration cases have found that mandatory vaccination policies in a unionized workplace are reasonable and enforceable in appropriate circumstances. In each of these cases, context was key. 

But we implemented the policy because we were required to by the City of Ottawa

Whether a vaccination policy was put in place because a customer required visitors to be fully vaccinated, is only one consideration.  We recommend that employers consider the totality of the circumstances, and the nature of their workplace, when making any decisions about mandatory vaccination policies.

What are some of the relevant considerations?

• The wording of the collective agreement or employment contract, and whether the agreement contemplated some form of discipline should an employee not obtain a required vaccination
• The nature of current government mandates and recommendations
• Whether the employees deal with a high-risk, or vulnerable population
• The nature of the risk related to an outbreak, including whether employees can work remotely or outside, and whether other less intrusive means (i.e. rapid antigen testing) would be sufficient to protect worker health and safety

Can we enforce a “vaccinate or terminate” policy?^*

The closer we are to COVID-19 becoming an endemic disease, the more difficult it may become to enforce a suspension without pay or termination for an employee who refuses to be vaccinated. In many workplaces, regular rapid antigen COVID-19 testing might be a reasonable alternative. Employers run the risk of being exposed to a wrongful dismissal claim if the disciplinary action taken for failure to vaccinate is found to be unreasonable. 

What about booster shots?^*

Depending on the nature of the workplace, a policy requiring employees to receive booster shots as recommended may also be reasonable.

At present, however, there are very few public health requirements with respect to mandatory booster shots. Unless this changes, it may be very difficult for an employer to enforce a termination based on an employee’s failure to obtain a booster shot.

Is anything non-COVID related happening in employment law?

Yes! In December 2021, the Ontario government passed Bill 27, the Working for Workers Act, 2021, amending various pieces of legislation, including the Employment Standards Act, 2000 (the “ESA”). One of those changes includes the employee’s “right to disconnect”.

In April 2022, The Ontario Ministry of Labour updated its online guide to the ESA to include sections on a written policy with respect disconnecting from work. Learn more here: The Right to Disconnect.

If you have any questions about mandatory vaccination policies, returning to in-person work, masking in the workplace or the right to disconnect, contact the Employment Law Lawyers at Merovitz Potechin LLP.

^* A suspension or termination may be more defensible in the case of new hires who are subject to a mandatory vaccination clause