Vaccination plans are rolling out across Canada and we’re starting to find our sense of normalcy again. But while some are thrilled with the reopening of shops, restaurants, malls, etc., others are a little more apprehensive. Some questions still remain.
What’s the lasting impact of the pandemic? Is it safe enough for everyone to return to the office? How effective are vaccinations, really? Will we still need to wear masks and follow physical distancing guidelines in the office?
These are some of the burning questions your employees may have and as employers, there’s an expectation for you to have all the answers. Vaccinations can play a big role in providing a safe work environment and peace of mind for your employees. But can you actually ensure that employees who are working in-person are vaccinated?
We spoke with employment lawyer and Partner at Shields O'Donnell MacKillop LLP, Hendrik Nieuwland, and asked him some of these questions. The focus of our conversation was workplace vaccination discussions in Ontario. Unless the Federal government steps in, Covid-19-related workplace guidelines will be handled on a provincial/territorial level and therefore will differ from one to the other.
Why do employers care about their employees’ COVID-19 vaccination status?
Every employer has an obligation to protect the health and safety of their employees under Ontario’s Occupational Health & Safety Act. Employees aren’t typically asked about their vaccination status, but because COVID-19 is so widespread, the COVID-19 vaccine has been top of mind as a solution for companies who are looking to return to the office.
In order to create a safe working environment, employers need more information about their employees’ health. However, this doesn’t mean that employers can force their employees to share their health records.
Beyond requiring employees to do their part in staying safe, employers must also look into sanitation practices like ensuring tabletops and common areas are cleaned on a regular basis.
Can employers make COVID-19 vaccinations mandatory for employees returning to in-person work?
There are currently no rules in Ontario making Covid-19 vaccination mandatory for employees. We took a look at long-term care homes policies as a baseline due to its high-risk environment and found that staff were required to do one of the following:
- Provide proof of vaccination of each dose;
- Provide a documented medical reason for not being vaccinated; or
- Participate in an educational program about the benefits of vaccination and the risks of not being vaccinated.
If high-risk long-term care homes are not required to mandate COVID-19 vaccination for all employees, it is unlikely that other employers operating in a lower-risk environment can legally implement a mandatory COVID-19 vaccination policy. There are many reasons for this: privacy, human rights, and civil liberties violations.
While this may be the case today, the situation is dynamic and both employers and employees should be prepared for potential changes in the future.
Can employers ask employees if they’re vaccinated?
Yes, employers may ask but employees don’t have to answer. This is true for both anonymous surveys and direct asks. In cases where employees answer “no” or “prefer not to say,” employers should assume that the employee hasn’t been vaccinated and treat them accordingly. This means employers can require employees to wear personal protective equipment (PPE) such as a mask, practice physical distancing and proper hand hygiene, and even be subject to rapid onsite COVID-19 testing.
Can employers ask visitors if they’re vaccinated?
Yes, employers may ask. Similar to asking employees if they’re vaccinated, visitors do not have to answer. If visitors answer “no” or “prefer not to say,” employers may ask them to wear PPE, physical distance, and sanitize their hands.
Can employers mandate in a policy that employees have to be vaccinated to enter the office?
To help create a safe workplace, some companies have put forward a “No unvaccinated people allowed in the office” policy. While this kind of policy is rare at this point in time, employers should be aware there are risks involved with such a policy. Some employees may not be vaccinated because of a disability or sincerely held religious belief, and therefore might claim their employers are infringing on their Human Rights by denying them access to the workplace. This risk remains even if the employees can work remotely, since some may not wish to work remotely and would claim they are being forced to do so because of their disability or religious belief.
The last year has been difficult on both employers and employees. Employers are being asked questions that in our modern world, have never been asked before. Like our evolving workforce, employment laws and precedents are changing, so it's important you stay up to date with Government news and policy changes as the pandemic evolves. Health and safety is top of mind for employers across Canada, and at Humi we work to inform our clients and employees with the details they need to shape the future of work.
Do you have more questions?
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