Should Employers Update their Vaccination Policies?team
As the COVID-19 pandemic wreaked havoc around the world, the government and employers introduced various precautions to limit the spread of the disease. The most common measures included mandatory face masks, compulsory COVID-19 testing, a remote or hybrid work environment, and a vaccination policy.
Among these measures, mandatory vaccination policies faced the maximum resistance. With the pandemic seemingly under control, many employers are still undecided about updating their vaccination policy. The article below will try to help you decide.
All Canadian provinces, including Ontario, have Occupational Health and Safety legislation in place. These statutes require employers to ensure a safe work environment for their employees. Employers may fulfill this obligation by introducing workplace policies aimed at preventing mishaps and the spread of diseases.
At the height of the pandemic, the federal and provincial governments encouraged vaccination to control the disease’s transmission. As COVID-19 continued to spread, the encouragement changed into directives, with many organizations, particularly in the healthcare sector, requiring vaccination as a condition of employment.
Following the government’s footsteps, many employers introduced workplace vaccination policies. This was done to comply with their obligation to ensure a safe work environment.
Can Employers Adopt a Workplace Vaccination Policy?
A vaccination policy is a health policy adopted in a workplace to control the spread of COVID-19. Under the policy, the employers may require the employees to be partially or fully vaccinated as a condition of employment.
The application of a vaccination policy on existing employees may be construed as a fundamental change to the employment agreement. A policy that places unvaccinated employees on an indefinite unpaid leave of absence may be challenged. In this case, an employee may sue the employer for constructive dismissal on the grounds of unilaterally changing their employment contract.
On the other hand, if an employer dismisses an employee for violating the workplace vaccination policy, the employee can sue for wrongful dismissal and claim damages.
In a recent British Columbia case, Parmar v Tribe Management Inc., 2022 BCSC 1675 (CanLII), the court ruled an employer did not constructively dismiss an employee by placing them on unpaid leave for failure to comply with a vaccination policy.
In contrast, the courts and tribunals in Ontario have not considered the issues of unpaid leaves and dismissals relating to vaccination policies in a non-unionized setting. It is still unclear whether an employer has the right to place their employees on unpaid leave or to terminate an employee without owing an employee severance.
With the pandemic slowing down, employers should consider updating their workplace vaccination policy to accommodate the employees who refuse to get vaccinated. Failure to do so could have costly consequences, including owing an employee severance if they succeed in a claim of constructive or wrongful dismissal.
How to Update a Vaccination Policy to Ensure a Safe Work Environment
Effective June 20, 2022, the federal government suspended the vaccination requirement for the Core Public Administration, including the Royal Canadian Mounted Police. Furthermore, the government recalled the workers placed on administrative leave without pay for non-compliance with the vaccination policy.
Other employers can take a cue from the federal government and review their vaccination policy to make it more acceptable to unvaccinated workers. This may reduce the future challenges to the policy without compromising the safety of the employees.
Removing vaccination as a condition of employment can reduce the employer’s chances of getting sued for constructive dismissal. With the pandemic receding and the federal government recalling the unvaccinated employees. Employers may find it difficult to justify keeping unvaccinated workers on unpaid leave indefinitely.
If the current policy allows the employer to dismiss an employee for non-compliance, the employer can remove such a condition to protect themselves from a possible wrongful dismissal claim.
Employers may still encourage workers to vaccinate by providing incentives and addressing their concerns regarding the safety of vaccines. They can also provide reasonable alternatives to mandatory vaccination. These may include regular COVID-19 tests or work-from-home arrangements for unvaccinated workers whose job duties do not require in-person attendance.
Due to the lack of case law on the subject, employers should exercise caution while updating their vaccination policy. A lawyer can help draft workplace vaccination policies with a better chance of being legally enforceable.
How a Lawyer Can Help
If you are an employer, getting sound legal advice regarding measures you can take to ensure workplace safety is important. You must balance your duty to ensure a safe work environment against the employees’ right to privacy. A lawyer can help you draft a workplace policy in accordance with this requirement.
Many employers hire a Chief Legal Officer (CLO) on a part-time, full-time or as-needed basis to help comply with their legal obligations. This lawyer is an off-site executive who can work with your organization. They can provide comprehensive legal services, from litigation to workplace policy drafting.
A CLO is generally skilled in the area of employment law. They can use their knowledge of employment law to help draft or revise your workplace vaccination policy as per the latest judicial trends. They can draft a policy addressing your workplace safety concerns while protecting your employees’ right to privacy and bodily autonomy.
If your organization does not have a CLO, you may seek the advice of an employment lawyer to clarify your rights and obligations. An employment lawyer has the experience and expertise to advise you regarding the propriety of your vaccination policy and assist in making changes.
If your employee sues you for acting against them for not complying with the vaccination policy, an employment lawyer can help. They are trained legal professionals with experience in navigating the court system. They can guide you through the court process and use their advocacy skills to help defend your actions in court.
At the height of the COVID-19 pandemic, many employers introduced mandatory vaccination policies to ensure a safe work environment. While many workers were happy to be vaccinated, some resisted these policies. Some employers reacted by putting unvaccinated employees on unpaid leave. Others simply terminated the workers who refused to get vaccinated.
With the worst of the pandemic possibly behind us, employers should reconsider their vaccination policy to address the concerns of the workers with vaccine hesitancy. They may provide employees with reasonable alternatives to vaccination, such as work-from-home arrangements or periodic COVID-19 testing.
An employment lawyer has the knowledge, experience, and expertise to help you draft or update your workplace vaccination policy. They can help modify the policy in accordance with the latest legal trends.
If you have any questions about workplace vaccination policies, our team of experienced employment and human rights lawyers at Achkar Law can help. Contact us by phone toll-free at 1-800-771-7882 or email us at [email protected], and we will be happy to assist.
If you are a small or medium-sized company looking for full-service support with a same-day response, visit our CLO Program page for our strategic solutions.
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