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LeClair & Associates Newsletter: August 23, 2021

Monday, August 23, 2021 - 23:20

Mandatory Vaccination and Testing Policies – Are We All Asking The Wrong Question? And is the “logic” flawed?

  • Over the past week announcements have been made about various frameworks that will seek to mandate vaccines in the Federal Sector, Health Care and Community settings, as well as certain Universities.
  • So far, the entire focus has been ensuring that employees are fully vaccinated to protect the health and safety of everyone at work. For those not fully vaccinated, these announced “mandates” will seemingly prescribe weekly testing, together with educational sessions on the benefits and importance of becoming vaccinated.
  • As we are seeing, however, being fully vaccinated does not necessarily guarantee against contracting and/or spreading COVID-19 – or one of the variants. Instead, if safety is the goal and is to be truly achieved, it would follow that the primary focus should be on frequent testing that ensures no employee brings COVID-19 into the workplace, whether vaccinated or not. Otherwise, the publicly announced “vaccinate or test” mandates start to look coercive and punitive. Essentially, the policy makers are telling employees that if they don’t want to go through the rigours of an intrusive regular test, they must be fully vaccinated. Based on our current understanding of breakthrough variants and COVID transmission, should health and safety best practices be mandating “vaccinate AND test”? The issue is certainly complex, both legally and practically. In any event and considered through this lens, the rationale behind implementing a “vaccinate OR test” mandate starts to come into question OR test” mandate starts to come into question.

Everyone else seems to be “mandating” vaccines, so why can’t we?

  • First, the Federal Government announced that it is working on a policy in support of its “mandate” and that this will follow in the coming weeks. At the very least, this should serve as a hint to employers that for now, testing and vaccines will largely remain consent-based in federal government workplaces.
  • The present political climate should not be lost on employers either, with the Federal announcement coming at a time when elections are looming. While the federal government has made headlines with its “Mandatory Vaccines” announcement, they have also said that the actual mechanics of the policy will not come out until October – after the federal election.
  • Notably as well, no details have been shared on just how this policy intends to balance, or justifiably limit the competing and legally protected rights that we have previously written about, or how underlying medical conditions and/or religious objections will be accommodated. Similarly, there is no detail on how employees who refuse to co-operate will be treated, bearing in mind that not everyone can work from home.

So then what exactly is required before employers can mandate testing and/or vaccines in the workplace?

  • Without detracting from the importance of vaccines – which employers should continue to encourage, the objective of workplace health and safety can best be substantively achieved, if frequent testing is pursued. That way, even those fully vaccinated workers who contract COVID-19 or any of the variants can be prevented from (unknowingly) endangering the workplace.
  • In order to achieve this (without inviting litigation), employers should ideally seek the consent of its staff or relevant trade union prior to implementation. However, this is less likely to be a practical possibility for all workplaces which quickly turns the attention to the issue of mandating itself.
  • Ideally, a carefully constructed legislative framework or an associated directive from Public Health would pave the way and more clearly permit employers to justify a mandatory testing and/or vaccine policy. In any event, such a policy would need to accommodate certain individuals on protected grounds, while also offering accountable levels of protection for the personal privacy and the health information of all staff.

Without the introduction of a new legislative framework, should employers be mandating these kinds of policies anyway?

  • Without the introduction of some legally permissive framework for particular workplaces or even generally, the mandating of testing and/or vaccines will likely remain contentious and invite test case litigation around the appropriateness of mandatory vaccination and/or testing, as well as the processing and retention of personal private health information, and finally whether certain employees have been appropriately accommodated. Furthermore, mandatory vaccination and/or testing will be fertile ground for constructive dismissal claims in the event that an employee is no longer permitted to work on the basis of refusing to get a vaccine or undergo a test. We could also potentially see mandatory policies challenged on the basis of alleged breaches of protected rights under the Canadian Charter of Rights and Freedoms.

A Common Question from Employers – “We are considering a mandatory policy and have implemented adequate personal privacy protections, however we still have resistant employees who are not relying on any protected grounds under the Human Rights Code. What are the risks of mandating a policy in these instances?”

  • Generally the Charter of Rights and Freedoms does not apply to private actors such as provincially regulated employers and their employees. Having said that, the Supreme Court of Canada has demonstrated a willingness to impose “Charter values” on private sector employers, particularly when dealing with the bodily integrity of individuals. In the decision of Irving Pulp and Paper Ltd. 2013 2 SCR 458, the Supreme Court of Canada held that the collection and use of a person’s bodily material without their consent, as well as the collection of their personal health information, invades into an area of personal autonomy and privacy that is essential to the maintenance of human dignity. Therefore, while specific provisions of the Charter may not be directly applicable, the values of autonomy and dignity of the person remain protectable and potentially actionable by such employees.

Context remains King!

  • Mandatory policies should be considered on a case-by-case basis, taking into account factors such as the type of workplace (i.e. health care facilities vs an office environment), the relative and reasonable risk of workplace transmission, and the ongoing availability of less intrusive measures, together with any health and safety protocols (such as physical distancing, PPE, and sanitizing measures). On this note, it is important to bear in mind that Ontario also operated for a number of months without vaccines and under the existing COVID protocols that were deemed safe enough to continue operations - in the midst of infection numbers, ICU hospitalizations and mortality rates then were far higher than what they are now. For many employers, the introduction of mandatory vaccines and testing at this point in time, could lead employees to question, “Why now?”
  • Therefore, context, alternatives and the least intrusive considerations will all be relevant counters that employers may face, if they choose to forge ahead without the protection of prescriptive new legislation, or some other public health directive.

Ok, but what about the Universities?

  • Those Universities that have mandated vaccines have done so on the basis that any students requiring accommodations or students who are unprepared to be vaccinated or tested, will then be offered bi-modal or remote learning opportunities – much like we saw during the latter part of 2020 and early 2021. Similar alternatives are unlikely to be available in all workplace environments, especially those that are unable to offer remote working arrangements, highlighting once again the various possibilities that may exist depending on the context or a particular workplace and its environment.

Other workplaces where context applies

  • Construction Sector: In the arbitration of EllisDon Construction Ltd. v Labourers International Union of North America 2021 CanLii 50159 (ON LA), a mandatory testing policy was upheld as reasonable when compared to the outbreaks that were re-occurring in the construction industry. Notably, the case was decided at a time when far fewer Canadians had been vaccinated, and when Toronto was still in a strict lock down, given its high infection rates. Also, the employer in that case had experienced positive cases at some of its projects. We also note from the case that most employees had also complied with the employer’s request to be tested across its various sites – facts which may not necessarily be present in every context.
  • Care Homes: In the decision of Caressant Care Nursing and Retirement Homes v Christian Labour Association of Canada, 2020 CanLii 100531 (ON LA), it was found that in the context of a retirement homes, the intrusiveness of a mandated testing policy was reasonable given the weight of the problem in retirement homes at that time and given that some months before, the employees in question had submitted to prior testing. (i.e. the employees had previously consented to testing).

Should employers then be considering the implementation of testing as a workplace rule?

  • Potentially – but the implementation of a testing policy comes with risk.
  • On the one hand, given the level of interest around “mandated” vaccination and testing in the federal public sector, in hospitals and universities, employees may have come to accept and believe that their employers can in fact mandate testing. Furthermore, many people in Ontario are considered to be “fully vaccinated”, so the imposition of a “mandate” may not be an issue for the majority either. Also, many employees may simply consent to being tested.
  • However, before implementing a mandatory policy, it is critical to assess the kind of organization and furthermore, what it is prepared to do to those employees who refuse to get a vaccine or get tested? Will they be terminated and, if so, would it be with or without just cause? Would it put the employee on an unpaid leave of absence (and perhaps open itself up to a claim for constructive dismissal)? Would it be comfortable defending a potential claim for a breach of the values that the Charter seeks to protect?
  • At the very least, a policy would have to account for accommodations under the Human Rights Code (or federal Human Rights Act) and also ensure the protection of personal privacy and health information under the various statutes.
  • What does the law saw about the reasonableness of a workplace rule? Workplace policies or “rules” are generally considered against the standard set in the arbitration decision of Lumber & Sawmill Workers Union. V KPV Co. (1965), 16 L.A.C. 73 (Ont. Arb.). While it was set in the unionized context, this case provides employers with some key considerations for the implementation of any policy or rule.
  • In KVP it was determined that a workplace rule must:
    • be consistent with any collective agreement (or contractual provision;
    • be clear and unequivocal;
    • be brought to the attention of staff before the company can rely upon it;
    • notify the employee that a breach of the rule may result in their termination;
    • be consistently applied; and 6. should not be unreasonable.

Can employers therefore terminate employees who refuse mandatory testing or vaccination policies?

  • Although without cause terminations are generally available to employers, these should not be pursued in instances where they relate to protected rights in law, or the employee’s failure and/or refusal to waive such legal protections. In such cases, employees will have the ability to challenge their terminations and seek additional damages.
  • Therefore, employers may run a significant risk if they seek to terminate employees who refuse testing, or to be vaccinated – unless laws or public health directives supported by legislation are introduced and that clearly provide for this.

Shifting the focus:

  • The recent surge of the Delta Variant has proven to still infect certain individuals who have been fully vaccinated – although to a lesser degree, this reality still exists.
  • Given that rapid antigen testing is now more freely available, employers may decide to implement a workplace rule that reasonably requires frequent testing for all - especially where consent is unlikely to be obtained and/or work from home arrangements are not possible. Employers who do this should be aware of the legal (and perhaps employee relations) risks before doing so, and might be required to assume that risk on a calculated basis. Looked at differently, does the employer feel that the current benefit of mandating vaccines and/or testing, outweighs the potential legal risks of implementing such a policy (and/or the cost of terminating an employee who refuses to follow the policy)? These are difficult considerations for any employer and in relation to what has become a very live issue – trying to balance on the one hand business continuity (safely), and employee rights on the other.
  • The hope however is that there will soon be legislative or public health developments that provide much needed license to employers and regardless of their contextual background, so that those steps that they deem necessary can be taken with the full protection of the law.

We will continue to share updates and insights but for specific questions, please feel free to reach out to us directly at – nic@leclairandassociates.ca (519) 859 6015

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