With vaccination rates steadily rising across Canada and employers contemplating reopening their workplaces, we are starting to see certain questions come up more and more.
Below, we answer the most frequently asked questions that have come up with our clients. You can also download this FAQ sheet here.
Q: Can I make vaccinations mandatory for my employees?
Employers are required under health and safety legislation to maintain a safe workplace for their employees. However, this obligation must be balanced against competing human rights and privacy obligations. So while a mandatory vaccination policy may address the health concerns associated with COVID-19, to be enforceable the policy must also carve out exceptions for any employees unable to comply with the vaccination requirement due to a protected ground under human rights legislation, including a disability or religious belief.
A mandatory vaccination policy may be permissible in workplaces if the employer can demonstrate a tangible connection between the vaccination policy and reducing the risk of COVID-19 in the workplace. This question must be assessed on a case by case basis, because what is acceptable for one workplace may not extend to another. For example, an employer whose employees exclusively work remotely will not be able to justify the need for a mandatory vaccination policy, whereas a workplace that requires its employees to be present in the physical workplace may be able to.
To the extent an employer decides to go the mandatory vaccination route, we strongly recommend developing a written policy. This policy should, at a minimum, outline the basis for the vaccination requirement, how information will be collected and protected and how employees unable to comply will be accommodated.
Q: Can I ask current staff for proof of vaccinations?
Employers may be able to request proof of vaccination if a legitimate connection can be established between the need for the information and maintaining the health and safety of the workplace. Factors such as the nature of your workplace and the industry you operate in will be relevant to this analysis, as well as whether there is a less intrusive manner of obtaining this information. Employer must also recognize that medical information, including vaccination status, is an employee’s private personal information and treat it as such.
Q: Can I ask a job applicant if they’ve been vaccinated?
The answer is likely yes. Employers have broad latitude in making hiring decisions, subject to an obligation not to make decisions based on prohibited grounds under human rights legislation. An applicant may of course choose not to answer whether they are vaccinated, which could lead to the employer not hiring them. Given the risk of potentially missing out on otherwise strong applicants, employers should carefully consider whether these inquiries are truly necessary. This of course must be decided on a case by case basis, but unless a vaccination is needed in order to allow an employee to effectively carry out their job duties, vaccination information may not be relevant or necessary. Where vaccination information does impact how the prospective employee would carry out their duties, and in order to offset the risk of a human rights complaint, employers should explain to applicants that employees who are unable or unwilling to be vaccinated due to a protected ground can be accommodated.
Q: If I receive vaccination information, how do I store it?
As noted, information pertaining to vaccination status is an employee’s personal information, and must be treated as confidential. This information must be collected, stored, used and disclosed pursuant to applicable privacy legislation. As a general rule, employers should treat all personal information as confidential.
Q: Can I offer employees incentive to get vaccinated?
This is becoming an increasingly common question, particularly given various US states’ adoption of this practice*. The risk with any type of incentive program is if it disproportionately benefits or disadvantages employees based on a protected ground under human rights legislation. Accordingly, if an employer chooses to go this route, they would be wise to allow employees who are unable or unwilling to be vaccinated due to a protected ground under human rights legislation to receive the same benefit from the incentive program.
*US states have adopted incentives like lotteries and free doughnuts(!) to encourage their population to get vaccinated.
Q: Can I ask vaccinated staff to stop wearing masks/distancing?
No, employers must continue to comply with applicable provincial and federal health orders, regardless of whether their workforce is vaccinated or not. BC employers should keep an eye on BC’s multi-phase reopening plan and may slowly loosen distancing and mask-wearing restrictions as directed by the Provincial government and WorkSafeBC.
What’s your reopening plan?
BC’s Restart Plan proposes to have workplaces fully reopened at the earliest date of September 7 (Step 4). Our Workplace Law Group is ready to help you and your organization develop and navigate your reopening plan. Please join us at our webinar on July 17 – register early!
COVID-19 continues to have a serious impact on both employees and employers, and we realize that changes to government programs and legislation can be difficult to keep up with. If you have any questions or would like advice about COVID-19 and how it affects your business, employees or employment, please contact Ryley Mennie, Lou Poskitt, or Connor Levy from our Workplace Law Group.
A special thanks to our summer student Jessica Jacobson for helping out with this blog.