As the availability of the COVID-19 vaccine increases, employers across Ontario find themselves grappling with the question of what to do if their employees do not receive the vaccine. For example, are employers entitled to mandate vaccines? Can employers ask an employee to disclose their vaccination status? This article explores some considerations which employers should bear in mind when faced with these questions. Nevertheless, COVID-19 vaccination policies in the workplace are an unprecedented and evolving issue. As such, we recommend consulting with experienced employment law lawyers to assess your unique business needs.
As a starting point, employers should be mindful of their general duty to take reasonable steps to protect the health and safety of their employees from workplace hazards. This duty became especially relevant during the onset of the COVID-19 pandemic. Before the widespread availability of vaccines, employers began implementing COVID-19 related safety measures at work. For instance, employers have facilitated remote workstations, provided personal protective equipment to employees, mandated masks in the office, and integrated plexiglass barriers and hand sanitizing stations. Presently, employers are considering whether COVID-19 vaccines should be integrated, in some form, within their workplace policies, as part of their general duty to ensure worker safety. This shift seems mainly due to the increasing availability of the COVID-19 vaccine and the growing societal expectation that eligible persons should be vaccinated.
In addition to the duty to keep employees safe from workplace hazards, employers also have an obligation under Ontario’s Human Rights Code to provide accommodation to their employees for various rights related to protected grounds under the Code. For example, age, gender, disability, and/or creed constitute protected grounds. As such, employers may discover that an employee cannot receive the COVID-19 vaccine because of a protected ground under the Code. Employers should also consider the impact that their intended policies will have on Code-protected rights. Therefore, when drafting and implementing a mandatory COVID-19 vaccine policy or rapid COVID-19 testing requirement, employers will have to balance respecting their employees’ legal rights against their duty to keep their employees safe from the COVID-19 virus.
Rapid antigen tests have become readily available for purchase by individuals who may be asymptomatic but require proof of a negative COVID-19 test. In fact, Ontario has started seeing employers and businesses utilizing the technology for employees and students who are unvaccinated but require a negative COVID-19 test to attend work or school in person. In certain situations, rapid antigen testing may be a viable option to manage the conflicting employer-side obligations and employee-side rights referenced above.
It must be emphasized that the rules, policies, directions, and laws pertaining to COVID-19 are constantly evolving as new information becomes available. Moreover, many of these mandates are unsettled or untested by the courts, and as such, there is an absence of clear guidance on this issue. Finally, there may be effective strategies available to employers to manage employees that are unwilling to abide by COVID-19 vaccination policies. Still, these strategies will be specific to each business and each employee. As a result, we reiterate our recommendation that employers consult experienced employment law lawyers before acting, as they will be able to independently assess the relevant concerns and unique business circumstances in each case.