With many employees going back into the physical office, employers will be on the front line of making critical employment decisions to maintain a safe workplace. These decisions may include introducing vaccination policies and the possibility that some employees will choose not to comply. Here is what employers need to know about vaccinations in the workplace and how to adequately protect their workforce:
1. Have a company-wide vaccination policy
An employer has a general obligation, as per Ontario’s Occupational Health and Safety Act (“OHSA”), to take all reasonable precautions to protect the health and safety of its workers. This obligation is the reason, amongst other recent provincial health advice, why employers should have a vaccination policy.
An effective vaccination policy will require any employee working from the physical office to provide proof of full vaccination before coming in. Details concerning how vaccination disclosure will be collected and the consequences of non-compliance will also have to be addressed in the policy. Drafting a vaccination policy can be tricky, as it requires an understanding of the Province’s applicable employment and health legislation. An employer should contact an employment lawyer before allowing employees back into the workplace.
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2. Ensure employee vaccination disclosure complies with applicable privacy laws
To some, the simple inquiry of one’s vaccination status may feel like an invasion of privacy. Still, on the other side, employers who fail to follow the recommendations of medical officers and inquire about their workforce’s vaccination status can be found liable at law if an outbreak does occur in the workplace. So which right, either the right to privacy or the right to a safe workplace, prevails? Based on current employment legislation and provincial health recommendations, the right to a safe workplace does.
In any event, most provinces will allow an employer to collect, use or disclose personal employee information with consent and for a reasonable purpose. In light of a mandatory vaccine policy, the definition of a reasonable purpose will vary depending on the type of workplace, what duties are being performed, the potential risk of COVID-19 transmission, and the impractical or ineffectiveness of implementing other less intrusive methods.
Any documentation collected, stored and used in the workplace must comply with the applicable privacy laws. Compliance will include letting your employees know the exact purpose of why the information is being collected, how it will be used, and the safekeeping measures used to protect the information being compiled. Before collecting vaccination status documentation, an employee should be made aware that the information collected will only be used to the extent necessary for the implementation of the policy and its overall purpose to keep the workplace safe.
3. Understand your employees’ human rights and your duty to accommodate
Despite having a company vaccination policy, some employees will remain unvaccinated based on religious or disability grounds. These grounds are protected under the Ontario Human Rights Code. In these instances, employers have an obligation to provide a reasonable accommodation for the employees to continue to work, up to the point of undue hardship.
If an employee objects to being vaccinated on the mentioned grounds, employers can request documentation supporting the employee’s medical or religious grounds. It is essential that employers outline in their respective vaccination policies what proof an employee can be asked for and that any exemption is limited, or in most cases, rare.
Remember, personal or philosophical objections to the COVID-19 vaccine are not legally protected grounds that require an employer to make an accommodation.
4. Continue to comply with other health and safety precautions
Just because the workplace has a vaccination policy does not mean the other health and safety guidelines previously implemented go out the window! Employees should still be expected to comply with all applicable health and safety measures to reduce the transmission of COVID-19. This will include:
- Having and complying with a company screening protocol;
- Wearing a mask or face covering;
- Using any company provided PPE;
- Maintaining an appropriate physical distance from others; and
- Employee self-monitoring of COVID-19 symptoms when at work or otherwise engaged in any company business.
5. Stay updated with ongoing provincial guidelines and advice
The COVID-19 situation is constantly evolving. Employers should stay up to date with the Province’s health recommendations and legal guidelines. The following are helpful resources that are routinely updated and are a great reference for employers:
- Ontario COVID-19 Public Health Measures and Advice – https://covid-19.ontario.ca/public-health-measures
- Public Health Ontario Workplace Resources – https://www.publichealthontario.ca/en/diseases-and-conditions/infectious-diseases/respiratory-diseases/novel-coronavirus/workplace-resources
- Changes to the Employment Standards Act –
To learn more about vaccination policies, vaccination enforcement in the workplace and your legal obligations as an employer, please visit us at worklylaw.com or contact me directly at email@example.com