Mandatory or Voluntary? That is the Question

As COVID 19 vaccines are rolled out across Canada, as a business owner, you may be starting to wonder if all of your staff need to be vaccinated and whether you need to create a vaccination policy.

Creating a vaccination policy may be part of a business’ return to work plan.

Questions you may be asking:

  • Can an employer mandate an employee to get the COVID-19 vaccination?
  • Can a business request an employee to submit written proof of COVID 19 vaccination or the status of their vaccination shot?
  • Should a business implement a mandatory vaccination policy?

There are no simple answers to these questions. Each company is unique, like the individuals that work for them.

Before you draft a mandatory vaccination policy, let’s explore some key facets of vaccination policy you should consider:

  • Risk Analysis
  • Privacy & Human Rights
  • Discipline and Terminations
  • Is a Vaccination Policy Too Much?

Risk Analysis

As the vaccine becomes available to the general population and transmission rates decline, predictions are that Health Canada and Public Health units will continue to reinforce the message that wearing masks and social distancing will be necessary for a while. The duration of these required health measures has not been determined. Businesses are required to continue to take all reasonable steps to protect their staff from exposure or transmission of COVID-19 and variants of the virus.

Before putting pen to paper, determine if there is a valid reason all staff would need to be vaccinated. The reason must be legitimately tied to the business interests, and the rationale must be in good faith with a clear explanation. It is essential during this process you consider the industry, type of work, and the level and risk of exposure to your staff. Do these equate to a bona fide occupational requirement for all roles?

One way to capture this information is by conducting a risk analysis of each role in the company. Objectively reviewing tasks and responsibilities allows you to determine the level of risk or exposure.

During this process, it is essential to capture how work is currently performed and if/what may change as staff returns to the worksite.

We will explore other considerations: collecting and storing employee’s private health information, individual Human Rights, and disciplinary consequences for non-compliance. All of which should be included as you work through this process.

Privacy & Human Rights

As you continue through determining the needs for a vaccination policy, you will also need to consider the following:

  • Should your business request document proof an employee was vaccinated or is verbal confirmation sufficient?
  • How do you maintain each employee’s privacy is protected?
  • How and where will you store confidential and private information?
  • Who will be responsible for monitoring and tracking that each employee has been vaccinated?

The pandemic stay-at-home orders required some businesses to review their digital security and change how they obtain and store employee paperwork, business data, emails or files. A vaccination policy should include details on the appropriate communication method (written or verbal), collecting, tracking, securely storing, and possibly destroying personal confidential medical information.

Another consideration that needs to be addressed is how will you handle employees who may not be able to get vaccinated or choose not to be vaccinated. It may not be possible for an employee to receive the vaccine due to pre-existing medical conditions, a treatment plan or potential adverse medical reactions to the vaccine. Alternatively, some individuals may choose not to be vaccinated due to religious, creed or cultural beliefs; these people’s rights are protected under the Human Rights Code.

Employers have a duty and obligation to protect employees on prohibited grounds under the Human Rights Act. In short, a business can not discriminate against, hinder or prevent someone from being gainfully employed, deny goods or services, or treat someone inequitably. Also, a company has a duty to accommodate to undue hardship.

Discipline and Termination

Other critical factors to consider when implementing a vaccination policy is addressing reasonable disciplinary consequences for non-compliance and non-disciplinary workplace accommodations. If a company implements a mandatory vaccination policy and an employee is not compliant, does not get vaccinated, ultimately resulting in the employee termination this may trigger a constructive dismissal if an employee is terminated for non-compliance because they will not get the vaccine. Constructive dismissal is a unilateral change in the terms and conditions of employment.

Non-disciplinary workplace accommodations could include extending an employee’s current work from home option. The challenge may be determining the duration of the accommodation.

Ideally, whether you chose to implement a Vaccination Policy or not, you should include a risk analysis of and plan for integrating staff back to the worksite. The plan for return to onsite work should also include a communication plan with notice, a reasonable period of time, and continued health and safety protocols to reduce risk and exposure to virus.

Is a Vaccination Policy Too Much?

A mandatory vaccination policy may be difficult to enforce without triggering a Human Rights claim or a constructive termination.

A common approach taken by businesses to protect their employees from influenza (flu) is to share details about local public health flu shot campaigns. The annual flu shot is voluntary and local Public Health units have campaigns to raise awareness and to encourage people to get the influenza shot. Beyond just communicating information about getting the flu shot, an annual flu shot campaign also allows a business to share locations close to the worksite to get vaccinated reminders about proper hygiene including hand washing and staying home when sick.

Next Steps

To date, Health Canada has not mandated the COVID-19 vaccination. Public Health has not provided guidance for workplaces regarding vaccination, nor has the government legislated or implemented regulations regarding immunization. At this stage, consider developing a voluntary vaccination policy that upholds employee Human Rights, reinforces health and safety protocols (mask-wearing and social distancing and other health and safety measures). Provide a non-disciplinary measure to address workplace accommodations and ensure all private personal health information is confidentially stored.

With Health Canada and local Public Health policies changing regularly as vaccinations are rolled out, it’s important to know the current regulations regarding immunization. Each business is unique and other factors may need to be identified and considered to protect your business.

To talk about whether your business needs to implement a Vaccination Policy and how best to go about it, we recommend you book a consultation with HX Business Partners so we can answer your questions, address your business’s unique circumstances and then you can draft the policy on your own. A 45-minute consultation costs only $99 and is an affordable solution to avoiding more complex issues down the road.

Alternatively, we can develop a Vaccination Policy for you taking into account the unique factors of your business, industry and staff’s circumstance. We will assess your needs, do a risk analysis, draft a policy, offer two rounds of revisions, and deliver your final policy document to you ready to be shared with your staff. The Vaccination Policy package is available for a one-time fee of $497, for a limited time.

The HX Business Partners can help guide you through creating a Vaccination Policy or plan that is right for your business. HX is the new HR. We provide practical solutions to your unique challenges in this ever-evolving business world.

Watch the webinar – Vaccination Policies for Your Organization