Vaccine-related guidance for employers planning a return to work

With kids returning to class in September and an increasing number of large employers announcing a requirement for employees returning to work to be fully vaccinated, smaller employers are starting to contemplate what a return to the workplace might look like in the fall. Unfortunately, Ontario’s Employment Standards Act has not been updated and the Ministry of Labour has not provided guidance that will help us navigate this new reality.

If your workplace is anything like ours, you’re likely asking yourself questions such as: Can I ask my employees if they are vaccinated? Can I mandate that they be vaccinated? Can I require my employees to take a COVID-19 test when arrive at work?

Most employers should be able to navigate these and other questions with a common-sense approach – as well as a willingness to accommodate employees where their actions and decisions provide no hardship to the business.

Most experts agree the law is clear in certain areas:

The vaccination status of an employee is considered private personal information that cannot be compelled by an employer. Some will say there may be exceptions where it is clear that the safety of employees or clients is at risk. However, the consensus is that COVID-19 does not represent this level of risk (except perhaps in long-term care facilities or other health care services for those at risk) and will not trump the employee’s right to privacy.

An employer can mandate a return to the workplace, particularly if this was the working arrangement prior to the pandemic. However, an employer must be able to follow all public health guidelines in relation to workplace safety (e.g. employees must have the ability to social distance, wear masks indoors, submit to daily screening, etc).

An employer has to provide reasonable accommodation to anyone whose safety might be in question. If someone is immunocompromised or caring for someone who is, it would be considered reasonable under the law for them to ask for accommodation to work from home – as long as the accommodation doesn’t represent undue financial hardship on the business.

The existence of a pandemic does not, by itself, make the workplace “unsafe”. The individual circumstances or working arrangement for a particular employee might be made unsafe by the pandemic, but this is not considered to be the case universally.

Employers cannot require their employees to be vaccinated. There will likely be exceptions in industries dealing with people at risk or where it can be demonstrated that mandatory vaccination supports legitimate business interests. Otherwise, employees’ rights in this area are likely protected by the Canadian Charter of Rights and Freedoms.

There are some areas where a clear answer will likely never be available

Can I ask my employees if they are vaccinated?

While an employer can’t compel this private information or punish an employee for failure to answer, is it okay to ask? It seems reasonable for employers to seek a gauge of the relative safety of their workplace by asking the question either openly or through an anonymous survey. Employers will need to be extremely careful about how they ask the question and protect the confidentiality of any employee’s answer.

Many experts would say this is risky ground. Others would say that as long as it is asked in a way that invites employees to volunteer an answer with no potential consequences, it is completely reasonable for an employer to try and formulate a plan for safe return by asking for this information. In our experience, most people who have been vaccinated will freely offer this information.

Can I mandate that anyone coming into the workplace must be vaccinated?

This is the area that has garnered the most headlines in recent days and is perhaps the area of greatest uncertainty. There is case law, but mostly in the health care industry. We could also point to the requirement that most school boards require our children to be vaccinated against certain illnesses.

Many employers might wish to adopt this type of policy with the good intention of promoting an increased atmosphere of safety within their workplace. Ultimately, any worker that challenges this requirement will likely succeed on the basis that COVID-19 is a general risk, not a workplace risk, and therefore does not supersede an employee’s charter rights. Similarly, it is not likely that an employee can refuse to come to work if their co-workers are not vaccinated without pointing to specific factors about their own situation that heighten the risk.

Many large employers, like the Royal Bank, have instituted a mandatory vaccination policy for anyone coming into the workplace.  For anyone that is not vaccinated, or refuses to divulge their vaccine status, they will be subject to a COVID-19 test.

Can I provide incentives for employees to get vaccinated?

Ontario’s introduction of paid sick leave specifically allows for paid time off to get vaccinated. Employers may choose to offer additional financial incentives. In a legal context, these incentives can be challenged where they discriminate against people who can’t be vaccinated for medical or religious reasons.

We recommend a common-sense approach

When the rules of the game are somewhat unclear, small businesses can often take advantage of our size by using a common-sense, tailored solution. If you want your employees back in the office, the best way to get there is by gauging their feelings of comfort and safety.

Consider trying the following:

Have everyone return for one day.

Gauge reaction before and after. For example, announce, “On September 15 all employees are expected to return to work for the day. All public health measures will be enforced. Anyone with questions or concerns, should feel free to contact ( )”.

If you set this trial date well in advance, you will likely get a good sense from the feedback about whether you are on track to achieving your goal. You will get much greater employee buy-in because they are not being asked to consider a long-term, permanent policy.

Send an anonymous survey asking if employees are fully vaccinated.

If you find out that 100% of your workforce is vaccinated, it might alleviate a lot of your angst about planning a return.

Be ready to accommodate.

Only you know what’s best for your business. Consider announcing a policy and then be prepared to accommodate anyone that expresses a legitimate concern. A lot of fear has been generated by the world’s reaction to this pandemic. Some of it is justified and some of it is not. By accommodating in the short term, you may find that employees who were initially reluctant will be encouraged by their co-workers’ experience upon returning.

At some point, many businesses will need their employees to return in some capacity. Our best suggestion is a common-sense plan that works for your business and that also allows accommodations for those who are still hesitant about returning. This will get the ball rolling while allowing you to adhere to labour regulations.

PLEASE NOTE: All businesses are subject to their own employment contracts, collective agreements and internal policies. The Employment Standards Act is very broad and often too generic in its regulation of health and safety. This article is an attempt to provide a common-sense approach for small business to approach the uncertainty of a return to the workplace. If you are concerned about the legality of your own situation, it is important to seek your own professional advice. Feel free to email us at info@capcorp.ca to discuss an approach to your particular situation.