In late 2021 and early 2022, Canadian arbitrators and courts showed considerable deference to employer efforts to protect workplaces from COVID-19 by requiring employees to receive vaccinations prior to returning to work. If an employer decides to maintain their mandatory vaccination policy, they should take steps to bolster its defensibility in light of current scientific evidence. In particular, the policy should be regularly updated to reflect current public health recommendations and best practices.
As COVID-19 evolves, employers and adjudicators are recognizing the need for workplace vaccination policies to evolve along with the evolution of the virus. Appropriate workplace safety measures reflect current and potential future risks facing employees and the wider community. Those measures also reflect current knowledge of the efficacy of protective measures, including vaccination. Vaccination policies remain a key tool in protecting against COVID-19 so long as the requirements they place on employees meaningfully reduce the risks faced in workplaces and the communities they serve.
Employers with operations in Canada should regularly revisit their Canadian workplace vaccination policies to determine if they remain appropriately responsive to current public health conditions and advice regarding vaccines.
Balancing Risk and Impacts on Employees
As we have previously written, Canadian adjudicators have shown a willingness to uphold COVID-19 vaccination requirements so long as they are reasonable. An assessment of whether vaccination requirements are reasonable depends on balancing employee privacy and human rights against:
Risk COVID-19 poses for the workplace. Privacy rights will generally give way to the presence of a real risk to those in the workplace. For the past two years, COVID-19 has been a serious risk for most workplaces and the communities they serve. Workplaces with at risk populations or close working quarters have been especially vulnerable, but any in-person work can be said to heighten the potential for infection and adverse outcomes.
Effectiveness of the employer’s vaccination policy in controlling that risk. Infringing on employee privacy rights to protect the workplace will typically always be reasonable if the intrusion is effective in limiting the risk in issue.
These two principles remain applicable to mandatory vaccination policies, but the conditions they apply to are changing.
COVID-19 Risks Now More Variable
Canada is now entering a phase of the pandemic in which the public risks posed by COVID-19 will likely fluctuate considerably over time. In some regions, daily COVID-19 case counts have been stabilizing and/or declining, which has caused some employers to conclude that it is safe to suspend or repeal mandatory vaccination policies in the workplace. These employers are instead relying on other health measures to reduce the risks of COVID-19 in the workplace and surrounding community, such as improved ventilation, mask-wearing, distancing, and COVID-19 sick leaves.
Indeed, Canada’s federal government took the step of ending its workplace vaccine mandate as of June 20, 2022. Canada’s major banks have likewise also suspended their mandatory vaccination policies in recent weeks. More generally, employers across Canada are now revisiting their vaccination requirements as the risks posed by COVID-19 are becoming intermittent instead of ever-present.
However, it is important to emphasize that these trends may be reversed if there is a resurgence of COVID-19 in the community. Even in the face of stabilizing COVID-19 case counts, many workplaces with high-risk populations, such as hospitals and care homes, have elected to continue enforcing vaccination requirements. In workplaces with higher risks of transmission or adverse outcomes from infection it may not be appropriate to rescind vaccination requirements while the risk of further waves of infection persists.
Maintaining a reasonable COVID-19 vaccination policy requires an ongoing assessment of the prevalence of the virus, the vulnerability of employees or the community they serve, and the ability of the workplace to adapt if infections arise.
New Variants are Immune Evasive
Employers with operations in Canada should also be mindful of the fact that existing vaccines are generally considered to be less effective against COVID-19 variants, especially over time. An otherwise reasonable mandatory vaccination policy may not be enforceable if its vaccination requirements are no longer effective in preventing transmission of COVID-19. In FCA Canada Inc. v Unifor, Arbitrator Nairn recently arrived at exactly that conclusion.
However, FCA Canada does not stand for the proposition that COVID-19 policies are now unreasonable or unenforceable. It means that employers need to remain mindful of public health advice about the efficacy of vaccines and adjust policy requirements accordingly. It may mean updating the definition of “fully vaccinated” to include booster shots or new vaccines as they are developed.
If an employer decides to maintain their mandatory vaccination policy, they should take steps to bolster its defensibility in light of current scientific evidence. In particular, the policy should be regularly updated to reflect current public health recommendations and best practices, especially those in relation to recommended vaccination doses. Ultimately, Employers should ensure that their workplace vaccination mandate will have a meaningful impact on the risk of COVID-19 transmission.
If public health conditions are such that suspending or rescinding a mandatory vaccination policy is a reasonable course of action, important questions may arise with respect to employees affected by the policy:
Will employees on involuntary unpaid leaves of absence be reinstated? If so, when and how?
Will such reinstated employees advance a claim for retroactive wages if their leave was unpaid?
Will terminated employees seek wrongful dismissal damages?
It is important for employers to remember that changing COVID-19 conditions do not invalidate their decision to implement a mandatory vaccination policy earlier in the pandemic. Employers have had to make tough decisions to protect their staff, and they should stand by those decisions even after the worst has passed.
Employers with operations in Canada must also be prepared to reinstate previously repealed mandatory vaccination policies if public health circumstances change. COVID-19 conditions continue to be dynamic, and employers will likely need to respond accordingly.