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LeClair COVID Blast June 2, 2021

Wednesday, June 2, 2021 - 11:00

Q&A: Mandating Vaccines, Vaccine Incentives, Rapid Testing and Requesting Proof? All your workplace questions answered.

We still receive questions about mandating vaccines in the workplace – can we, or can’t we?

  • The current state of the law - There is no legislative or jurisprudential authority that currently supports the implementation of a mandatory vaccination policy in the workplace. In fact, we have previously written about consent being a necessary requirement. Notably, consent continues to be a core element of the government’s own vaccination rollout.
  • This continued consent-based approach begs the following question - why would the law enable a private actor (i.e. an employer) to do something that the government can’t/hasn’t or won’t do, despite it arguably having the law-making powers to do so through the legislature. The short answer is that when compared to analogous cases previously determined across Canada (and even up the Supreme Court of Canada), the law has yet to permit mandatory vaccination policies in the workplace.
  • But what about section 25(2)(h) of the Occupational Health and Safety Act (“OHSA”)? – Section 25(2)(h) requires employers to take “every” reasonable precaution in the circumstances to protect its workers. Although this provision is worded deliberately widely, it does not equate the word “every” with “at all costs”, especially where a delicate balancing of various competing interests exists. On the one hand, there is the need to keep the workplace safe and free from all risks and diseases (while acting within the ambit of the law), whereas on the other hand we have the rights of personal privacy, dignity and certain other Charter related considerations - not to mention the additional rights protected under the Ontario Human Rights Code (“Code”). These protections may include objections related to religion, creed, or even an underlying medical condition (i.e. a disability). In the past, Courts and Arbitrators have found that these competing interests outweigh the right to take “every” reasonable precaution, given that these precautions are still abridged where other legally protected rights may exist.
  • Other considerations also include whether less intrusive measures exist to achieve the same – or substantially the same – purpose. Therein lies the hotly contested debate; namely, whether an arguably invasive vaccine (or test), is truly necessary for purposes of protecting the workforce, especially when less intrusive measures exist such as daily screening, social distancing, sanitizing and even masking. Furthermore, are these kinds of invasive measures still required now that most of the adult population in Ontario have already received their vaccines (voluntarily) and we start moving closer to achieving better immunity levels.
  • Counter arguments: Certainly, a number of persuasive counter arguments exist as well. For instance, if we are to ever move away from the above measures, employees will eventually need to become vaccinated, otherwise we are simply institutionalizing the existing COVID protocols we live with on a daily basis. Furthermore, nothing in recent times has posed the seismic risk that COVID has had on the workplace, our economies and importantly, our everyday lives. Therefore, in order to regain normality and the best possible protection, mandatory vaccination could be the logical answer.
  • Certainly, there appear to be valid arguments on both sides of the table, however these competing considerations simply confirm our earlier messaging - that we are on the verge of time consuming and costly test case litigation which will eventually resolve these issues, but not without a series of appeals, likely all the way to the Supreme Court of Canada. As such, it remains our position that absent a new development in the law or new legislation, employers should follow the lead of government and ensure that any vaccination (or testing) policies are only implemented on a consensual basis.

What about the recent availability of rapid antigen tests? Can we mandate these?

  • Rapid antigen testing is now being made more freely available through the Ontario Government and serve as a useful screening tool for both employers and employees. Although these tests are mostly being administered by health professionals, mandating the screening test will invite similar concerns to those that apply to mandatory vaccination policies. What is more, none of these rapid tests are currently diagnostic, and have the propensity to still deliver unreliable results from time-to-time.
  • Efficacy: Therefore, employees who submit to rapid antigen testing and prove positive, are still required to undergo a full lab test before being finally diagnosed – calling into question the true value and efficacy of these tests to start with.
  • Snapshot: Furthermore, rapid testing only serves as a snapshot in time, meaning that unless testing occurs daily (which is not feasible, nor affordable, in all cases), employers will only get the benefit of a periodic test, missing several risks that may enter the workplace before the next test is administered.
  • Risk vs Reward: For a test that is not even diagnostic, is not fully reliable and which only offers snapshots at particular intervals as opposed to daily measures, employers should be slow to invite the otherwise significant legal exposure that follows mandatory testing policies. It should also be borne in mind that a number of these rapid tests are still not saliva based and continue to require some level of intrusiveness through throat or nasal swabs, causing the personal intrusiveness concerns to become relevant here too.
  • Consent should therefore similarly apply to rapid testing and this view is fortified by the various public health units which require employee consent before administering any rapid testing. By doing so, public health is quite clearly seeking to avoid the aforementioned legal challenges discussed above and this should, in and of itself, urge employers to reconsider the potential legal risks around mandating testing, where this kind of testing is not yet reliable, diagnostic, or even possible on a daily basis.
  • Self-swabbing is now also on the cards, with employers being trained to supervise employees to (voluntarily) self-administer their own tests. Although these practices reduce the burden and potentially the cost of administering the tests, it does potentially pose a greater risk of injury and conceivably claims to the WSIB, which if successful, may impact on an employer’s premium. This should be kept in mind where self-swabbing is being considered by employers.
  • Privacy concerns: A further area of consideration and one where perhaps no clear solution exists, is around employee privacy. Turning an employee away from their shift following a test, would likely suggest to other members of staff that this employee had tested positive, which would be further supported by the employee’s continued absence over the days that followed. This makes testing and the maintenance of personal privacy a difficult balancing act. Employers should therefore be conscious of these concerns and potential areas of risk as part of their consideration of adopting a mandatory testing policy.

If the law doesn’t permit us to mandate a vaccination policy and/or conduct testing, could we then contract into such a practice, by offering employees an incentive or added compensation?

  • Vaccine Lotteries and similar incentives are alive and well south of our border, turning local attention to the topic and particularly in the context of the workplace, where employers are now asking whether they can offer to pay vaccine incentives to employees, in exchange for them becoming vaccinated.
  • What are the risks? First, these kinds of incentives quite clearly accept that employers cannot mandate vaccines to start with. This may constitute the first hurdle (i.e. can the employer contract with the employee in relation to something which the law does not permit). In that light, the incentives may start to appear “coercive”. Similarly, comparable exposure points exist where employees may be paid for, or incentivized to waive, protected religious or health related rights in order to avail themselves of the incentive – with the question being whether this is even possible especially where some of these rights (such as religious beliefs) may attract Charter protection.
  • Comparisons: In previously decided decisions such as Halltech Inc. v United Steelworkers of America Local 3- 01, as well as O.N.A v Orilla Soldiers Memorial Hospital, the issue of attendance related bonuses and/or benefit related compensation policies were assessed. These cases confirmed that providing different levels of compensation to different groups of employees (and therefore by way of an analogy - to those who are vaccinated), is not itself discriminatory, however where the differential treatment is based on a prohibited ground such as religion, then the differential treatment will be prohibited. With the potential for vaccine incentives to automatically exclude employees on this very basis and additionally be considered as “participation” based bonuses rather than compensation for services performed, they remain open to being legally challenged under the Human Rights Code.

Some of our employees have already been vaccinated – can we compel them to provide proof of their vaccine?

  • The question is probably better put as follows – what does the employer intend to do with this information? Employees uncomfortable with disclosing their vaccine status may argue that the employer is acting out of reprisal against them for failing to either get a vaccine, or for failing to disclose proof of their vaccine status. Potential reasons for refusing to disclose in the first place may include the employee not wanting to receive a vaccine but fearing reprisal from their employer as a consequence thereof, or employees who have been vaccinated contrary to their religious or related beliefs and therefore feeling uncomfortable disclosing their status out of fear that the information will not be kept strictly confidential. Other employees may even lie about their vaccine status in order to get the incentive. Regardless, asking employees for their vaccine status may be construed as a form of constructive or implicit mandating, triggering the considerations mentioned above and to this end, Canada’s Privacy Commissioner has recently weighed in on the issue, summarized below.

What about all the talk of vaccine passports - why can’t we insist on some form of proof in the workplace as well?

  • Canada’s Privacy Commissioner has made it clear that requesting individuals to disclose personal health information (i.e. their vaccine/immunity status in exchange for goods, services and/or access to certain premises or locations), will constitute an encroachment on civil liberties which can only be exercised in compliance with applicable privacy laws.
  • The Commissioner has also indicated that there must be some form of evidence-based necessity or requirement for the disclosure in the first place and with no less intrusive privacy measures available. In addition, the proportionality of the request must be clear, with the least amount of personal health information being collected, used and/or disclosed.
  • Vaccine passports must also be decommissioned, if at any time it is determined that they are not a necessary, effective or a proportionate response to address the public health purpose. The Commissioner has made it clear that as things stand, it is not in possession of any evidence that proves that vaccine effectiveness necessarily prevents transmission - although the Commissioner’s office concedes that this scientific evidence may be forthcoming.
  • Principles: The Commissioner has also recommended that governments and businesses, must adhere to certain privacy principles. First, there must be legal authority enabling the request for a vaccine passport - which strongly suggests that the law does not currently support disclosure and will needs to still be passed before this is possible. Secondly, there must be both consent and trust in the system, suggesting that some level of accountability and transparency will need to be built into the system. Furthermore, individuals (or employees) should be given the freedom of choice as to whether to disclose or not – with the Privacy Commissioner making it clear that consent should not be a condition to receiving services or accessing a place - and arguably this could conceivably extend to protecting an employee’s job security in instances where the employee exercises the right not to disclose to their status. The Commissioner has also made it clear that there will need to be sufficient safeguards and independent measures put in place, in order to ensure adequate oversight of these measures.
  • Therefore, it appears that although we may eventually get to the stage of vaccine passports or a person’s proof of status being required, we (and the law) are not there yet.

For specific questions, please feel free to reach out to us directly at – nic@leclairandassociates.ca (519) 859 6015

Written by Nic Preston, Lucas Triemstra and Stefan Jovanovic

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