Legal experts are urging employers to implement COVID-19 vaccination policies, whether mandatory or voluntary, to protect employees and customers and prevent the spread in workplaces and the community.
Farms and other agri-businesses are included in the recommendation.
“If you are operating a workplace during a global pandemic and you haven’t turned your mind to a vaccination policy, you could be found to be non-compliant with your obligations,” says Deanah Shelly, a partner in Mathews Dinsdale & Clark’s Toronto firm. She recently presented a webinar for Workplace Safety and Prevention Services and the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA).
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Why it matters: A mandatory or voluntary vaccination policy in the workplace can help prevent the spread of COVID-19 and comply with the Occupational Health and Safety Act.
While there is no clear mandate for provincially regulated businesses to have this type of policy, Shelly says the onus is on employers to comply with the Occupational Health and Safety Act, including clause 25(2)(h). It indicates that an employer is required to take every reasonable precaution in the circumstances for the protection of workers.
Mandatory vaccination policies require employees to be fully vaccinated in order to enter the workplace and they outline disciplinary action for those who don’t comply.
Voluntary policies do not compel vaccination but they do provide information to encourage workers to get vaccinated and may reward those who do.
The consequence for unvaccinated employees or those who do not disclose their status could include a daily rapid test program.
“Every employer should scrutinize their own workplace and assess how workers behave in order to determine if it is reasonable to have a mandatory policy,” says Shelly.
To assess vaccination policy, these questions should be answered:
- Is work performed indoors or outdoors?
- Does the workplace require workers to be in close proximity to others?
- Can work be done remotely?
- Is congregate living part of the workplace?
- Are there customer requirements mandating vaccination to access customer locations?
- Have there been COVID-19 cases or outbreaks at the workplace?
- How would a significant absence of workers impact operations and production?
- Are there individuals who may be at risk for severe illness from COVID-19?
- Can current prevention measures (masking, distancing, disinfecting, etc.) be maintained?
If an employer cannot carry on business without a certain number of employees present, for example, it would tip the scale toward a mandatory policy, says Shelly.
To comply with human rights obligations, vaccination policies must include exemptions for valid medical or religious reasons. Employers must also ensure any vaccine information provided by employees is confidential and controlled.
When the policy is challenged by an employee, its reasonableness will be scrutinized by an adjudicator.
Policy templates and other resources are available online through some municipalities and health units as well as the Canadian Centre for Occupational Health and Safety.
