Vaccinations and the Workplace: Update

On February 2, 2021, we hosted a webinar on the Top Labour and Employment Trends from 2020. Among the most important subjects we discussed was employer strategies for responding to the pandemic, including the issue of requiring vaccinations among workers as a term of employment. We provided a detailed analysis regarding mandatory vaccination policies in our March 11, 2021 article: To Vaccinate or Not to Vaccinate: The Employer’s Dilemma.

Perhaps the most significant change since early February is the status of the pandemic. In several regions across Canada, it has significantly worsened, requiring the dramatic reallocation of hospital resources, school closures and an extended “Stay-at-Home” order in Ontario. Among the reasons the pandemic has surged is the rise in “variants”, a term used to describe a virus that has mutated. Evidence indicates that the U.K. variant could be significantly more transmissible than the other variants.

Under the Occupational Health and Safety Act, employers are obligated to take every reasonable precaution necessary in the circumstances to protect their workers. Although most employers have implemented robust health and safety protocols in response to the pandemic, all employers must remain vigilant. As our knowledge of combating the coronavirus evolves, and as the pandemic surges or recedes, reasonable health and safety protocols must adapt accordingly.

Paid sick leave, while not a health and safety protocol per se, may be an invaluable tool to incentivize employees to stay home when they are ill and potentially contagious. Much like a remote work policy, employers are entitled to implement paid sick leave on a temporary basis to address the pandemic, and should do so by communicating a clear policy in writing. Interestingly, on April 22, 2021, Premier Ford announced that the Government of Ontario was considering a paid sick leave program, the details and timing of which were not disclosed. We will monitor the development of this program closely.

Hot Spot Vaccination Clinics

One of the few points of optimism during the pandemic is that there are several COVID-19 vaccines which have been approved for use in Canada. Unfortunately, the procurement and rollout of vaccines thus far has been disappointing by international standards. Nevertheless, the Aird & Berlis Workplace Law Group has been closely monitoring developments surrounding vaccines and the impact on workplaces in Ontario and Canada.

Recently, the Office of the Premier in Ontario issued a news release that employers who meet certain requirements will soon be permitted to host onsite vaccination clinics under the second phase of Ontario’s three-phase vaccination plan to supplement publicly-run vaccination clinics.

In order to be considered eligible to deliver an onsite vaccine clinic, employers will need to meet the following conditions:

1. the workplace must be located within an identified hot spot community and have had a previous COVID-19 outbreak or is at risk of an outbreak;
2. the onsite clinic will vaccinate employees who cannot work at home, many of whom reside in hot spot areas;
3. the employer will also vaccinate those in the local community, either at the onsite clinic or an alternative location in consultation with the local public health unit; and
4. the employer will take on the responsibility of setting up, operating and funding the onsite vaccination clinic as well as the community clinics being sponsored if not onsite.

These clinics are expected to be set up, operated and funded by participating employers within hot spot areas to vaccinate employees aged 18 and over, as well as members of the local and neighbouring communities. Employers who are located within an identified hot spot community and meet the eligibility criteria can inquire about hosting an onsite clinic by contacting covid19vaccinetaskforce@ontario.ca.

Mandatory vs. Incentivized Vaccinations

Despite an employer being able to host a vaccination clinic under the above provisions, this has not altered our prior guidance that mandatory vaccination policies are not likely to be practicable outside of high-risk environments. Even in such environments, exemptions for human rights accommodations, among other considerations, are necessary.

As an alternative to mandatory vaccination policies, employers may rely on incentives. Several provinces are moving in this direction. For example, Alberta and Saskatchewan recently enacted three hours of paid, job-protected leave for employees to get the COVID-19 vaccine. Employers can promote vaccinations through education, paid leave and flexible work schedules, among many other alternatives.

Employers in Ontario should note that the Ministry of Labour, Training and Skills Development recently amended the Employment Standards Act, 2000 Policy and Interpretation Manual, which provides guidance on the interpretation of the ESA. Among the changes was further guidance about the use of the Infectious Disease Emergency Leave (“IDEL”). One of the reasons employers are entitled to leverage IDEL is a concern that “the employee may expose other individuals in the workplace” to COVID-19. The updated Policy Manual now expressly cites as an example an employer who implements a COVID-19 vaccination policy and directs unvaccinated employees not to report to work until they are vaccinated. Such employees would be entitled to IDEL. To be clear, the Policy Manual does not impact the law with respect to occupational health and safety or human rights, and the decision to place unvaccinated employees on leave still requires careful consideration of these issues.  

Enforcement

Employers should take note that the various levels of government have ramped up enforcement of health and safety measures. Since April 23, 2021, workplaces in Toronto and Peel Region can be ordered to shut down where five or more confirmed cases of COVID-19 are identified within a 14-day period, and where cases could reasonably have been acquired through infection in the workplace. The terms of the shutdowns are based the respective Section 22 orders enacted by Toronto and the Peel Region under the Health Protection and Promotion Act.

The Government of Ontario has hired more than 100 additional inspection officers, with a targeted focus on COVID-19 prevention measures and protocols. We expect to see a substantial increase in enforcement around July 1, 2021, which coincides with the conclusion of the inspectors’ training period. Though any workplace is subject to inspection under the Occupational Health and Safety Act, the government seems particularly focused on high-risk and high-transmission environments, such as factories and warehouses.

Stay tuned for our next Workplace Law webinar, which will take place on Wednesday, May 19 and focus on workplace vaccination issues.