LeClair & Associates Covid Blast

Hot Button Topic: Mandatory vaccines in the workplace – please give us a simple answer?

• As the law currently stands – Mandatory vaccines are possible in the workplace, provided the employer obtains an agreement from its employees. To date, this remains the clearest option available to employers, without inviting a legal challenge or risk.
• What if we don’t have consent? Undoubtedly, there are a number of workplaces that would greatly benefit from mandatory vaccination programs, especially in the case of front-line health care workers. However, as the law currently stands, we know that previous decisions such as Sault Area Hospital and Ontario Nurses’ Association, 2015 CanLII 55643 (ON LA), decided before Arbitrator Jim Hayes, and Ontario Nurses Association and St Michaels Hospital, decided before Arbitrator William Kaplan), both found that mandatory vaccinations in the workplace were impermissible.
• In addition, the Supreme Court of Canada has previously protected the rights of employees, particularly when it comes to issues of dignity, and personal privacy. Analogous cases decided in the context of drug and alcohol testing have been instructive in this regard and to date, our courts have been reluctant to condone medical procedures or interventions where these are intrusive or undermine the employee’s rights to dignity, autonomy and personal privacy.
• Admittedly, COVID-19 introduces new and enhanced considerations, but until such time as there is a shift in the law (and likely costly litigation) we would steer clear from the online articles doing the rounds that are advising that employers can unilaterally impose mandatory vaccines in the workplace. Some of these have gone so far as to suggest that employees who fail to obey mandatory vaccine policies, will face dismissal from employment. As such, we thought it appropriate to deal with all the “IF’s” and “BUT’s” head on.

BUT - we read something online saying that employers can mandate vaccines in the workplace?

• So have we: And notably the article in question references the possible $10 million fine that can be imposed upon employers for “COVID carelessness” and if employers don’t do everything in their power to eradicate COVID in the workplace. According to some of the provocative articles out there, this could include mandating vaccines across the workforce and terminating those who don’t oblige. At least one incendiary article cites the Ontario Emergency Management and Civil Protection Act, 1990, not to mention a flurry of potential law suits that may be brought as a result of employer negligence.
• Looking at the legislation in a calmer, more realistic fashion reveals that although it does provide for fines, it does so in cases where there is interference and/or obstruction that seeks to prevent the exercise of the relevant powers or duties under Ontario’s emergency legislation. This crucial context is missing from the fear mongering articles. More realistically, employers do not stand to incur any of these fines for not mandating vaccines in the workplace.
• Irresponsible: These articles also fail to address the recently introduced Bill 218 - An Act to Enact the Supporting of Ontario’s Recovery Act, 2020, which received Royal Assent on November 20, 2020. In brief, it provides that (contrary to the messaging of these articles) no legal claim will lie against any person (or employer) where a person is infected with or exposed to COVID-19 on or after March 17, 2020, provided that at the time, the person (or employer) acted, or made an effort to act in good faith with public health guidelines, any federal, provincial and/or municipal by-laws related to COVID-19, and provided that the persons’ (or employers’) conduct does not amount to gross negligence. This could obviously change if in time, vaccines are mandated by public health authorities.
• Compliance: Most, if not all, employers are likely already compliant with this good faith standard - given that employers are in any event required to meet the arguably higher standard contained in section 25(2)(h) of the Occupational Health and Safety Act, namely “taking every precaution reasonable in the circumstances for the protection of a worker”. However and once again, this does not mean mandating vaccines in the workplace, especially where doing so will breach other legally protected rights and freedoms.
• How far to go: The “all reasonable precautions” standard under the Occupational Health and Safety Act, must still and at all times be founded in the law and is not to be achieved at all costs - bearing in mind that dignity, personal privacy as well as disability and religious grounds already enjoy legal protection. Therefore, employers should fear the false prospect of fines, or be given deceptive courage that makes them feel compelled to mandate vaccination practices, especially in circumstances where the legal basis for doing so does not yet exist.

BUT - these articles say that employees can be terminated on a ‘without cause’ basis, for failing to comply with our policy around mandatory vaccines?

• Yes they do and typically they are touting a blanket right to terminate on a without cause basis and without properly advising of the associated risks. This is setting employers on a journey into unchartered territories and has the effect of encouraging what will soon become costly litigation and reputational scrutiny.

What about employees who want to receive the vaccine voluntarily – are employers obliged to provide them with paid time off?

• Saskatchewan: Effective March 18, 2021, Saskatchewan became the first Province to amend its Occupational Health and Safety Regulations, so as to permit a new Special Vaccination Leave. This entitles employees to three (3) consecutive hours, during working hours, to receive a COVID-19 vaccine - and without any loss in pay or benefits.
• Ontario: Recently, Ontario’s Premier indicated an interest in permitting front line health-care workers paid time off to receive a COVID-19 vaccine. It is unclear at this time whether this will be formalized and extended to other sectors through a legislative or regulatory update. Currently, the Employment Standards Act, 2000, does not permit paid time off to receive a vaccine or to paid sick leave however, employers could voluntarily agree to this once vaccines become more widely available - more of this to follow.

In other news, the Federal Government has updated a number of the existing assistance programs

• Employment Insurance (EI): benefits have been increased to a maximum of 50 weeks for EI related claims made between September 27, 2020, and September 25, 2021.
• Canada Recovery Benefit (CRB): which is available to workers who do not otherwise qualify for EI, has now been increased from 26 to 38 weeks.
• Canada Recovery Sickness Benefit (CRSB): has been increased from two to four weeks and is available to workers who are required to self-isolate, or are sick as a result of COVID-19.
• Canada Recovery Caregiving Benefit (CRCB): has been increased from 26 to 38 weeks and is available in instances where a child under the age of 12 requires care owing to school or day care closures and related to COVID-19.

Updates: Daily Screening and COVID- 19 questionnaires

• New: For employers who are using previous versions of the Province’s daily screening questionnaires, we have enclosed the most updated versions of these.

We will continue to share updates and insights in the coming weeks however, for specific questions, please feel free to reach out to us directly at – nic@leclairandassociates.ca (519) 859 6015