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Mar 11, 2021

To Vaccinate or Not To Vaccinate: The Employer’s Dilemma

By Alex Kagan and Daria (Dasha) Peregoudova

Thank you to those who attended the Aird & Berlis Workplace Law webinar in February in which we discussed the Top Labour and Employment Trends from 2020. One of the topics that generated the most feedback was vaccinations in the workplace. As such, this article summarizes our insight on the topic.

Can employers implement a mandatory vaccination policy?

There is currently no legislation which requires mandatory COVID-19 vaccination, and we do not anticipate such legislation to arise. Case law is similarly difficult to glean an answer from, as the topic of mandatory vaccination has yielded mixed results.

In unionized settings, arbitrators require the imposition of mandatory vaccination policies to be “reasonable” under the circumstances. The challenge for employers is that the COVID-19 pandemic is unique and what was deemed to be reasonable or unreasonable with respect to SARS, H1N1 and the seasonal flu may not be relevant under current circumstances. In non-unionized settings, there is no precedent to enforce a mandatory vaccination policy, but the reasonability of such a policy will still be critical to the analysis.

In our view, workplaces in which employees work closely with each other and/or a vulnerable population are more likely to be of a sufficiently high risk to support a mandatory vaccination policy. Such workplaces include hospitals, retirement homes and potentially “work close” settings such as food processing plants. However, given that a vaccination is a medical procedure, some workplaces that may be able to justify other precautions such as mandatory COVID-19 testing and temperature checks will not be able to justify mandatory vaccinations. The degree of risk and rationale for the policy based on valid scientific evidence is critical.

If a mandatory vaccination policy is ultimately implemented, imposing discipline, including termination of employment for just cause for failing to get the vaccine, is unlikely to be upheld by courts or arbitrators unless there are exceptional circumstances. Therefore, in addition to accommodating employees with human rights concerns, such as religion, disability and pregnancy, employers that implement mandatory vaccination policies are well-advised to accommodate employees who are resistant due to fear, anxiety or conscientious objection. Such accommodation could include working remotely, enhanced personal protective equipment and added social distancing measures.

As outlined in detail below, there are many alternatives to mandatory vaccination policies. In many work settings that cannot justify a mandatory policy, education, information and even incentives may be the more practical course for increasing vaccinations among employees. We recommend engaging employees in a dialogue early and remaining open and flexible to their concerns. Given the current status of the vaccine rollout, employers will likely have months before COVID-19 vaccines are available to the general public, which provides an opportunity to initiate an open dialogue well in advance.

What are the alternatives to making vaccines mandatory?

Alternatives to mandatory vaccination policies should be given due consideration and may be more appropriate in lower-risk workplaces. The following tips will assist in determining an approach.

  • Flexibility. There should be no “one size fits all” solution. Review and analyze employee responses, including any accommodation requests. Consider alternatives, such as remote working.
  • Time, planning and access. We know from annual flu vaccine campaigns that employer reminders and general facilitation of vaccines significantly increases vaccination rates.
  • Compensation. An employee may be hesitant to take time away from work if it requires the use of limited vacation, personal, sick or other paid time off. Consider an exception which would eliminate this concern and compensate employees who get vaccinated during work hours.
  • Education. Access to information and educational material from reputable sources is especially key in a digital age with significant online misinformation. Providing access to materials or a presentation can assist employees who feel that they are lacking information, or might feel hesitant about the vaccine due to rumour or speculation.
  • Data and Privacy. Employers should map out simple, privacy-conscious ways for employees to submit information that they have been vaccinated, similar to what employers have already put in place with respect to mandatory screening responses, and other COVID-19-related health data.

Vaccines should be only one part of a multi-tiered approach. Barring revised public health guidelines, employers should continue best practices with presenting, refreshing and strictly enforcing COVID-19-related policies in their workplaces, including disciplining employees for failure to follow protocols. Prevention, education and promotion will help employees stay the course and do their part. There is light on the horizon.

Do not hesitate to contact a member of the Aird & Berlis Workplace Law Group should you have any questions.

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