For many Employers, a return to normal pre-pandemic operations was always the plan. To meet obligations under the Occupational Health and Safety Act (OHSA), some Employers are implementing a vaccination policy and mandating the vaccine to ensure they meet their obligation to maintain a safe and healthy workplace for employees, to protect and prevent the spread of COVID-19 in the workplace.
While there is no legal requirement to implement mandatory vaccination policies in most sectors, there are key considerations Employers should understand prior to introducing this requirement:
1. Ontario Human Rights
The Ontario Human Rights Commission (OHRC) recently released a statement on vaccine mandates and proof of vaccine certificates. The OHRC stated that “mandating and requiring proof of vaccination, is generally permissible to protect people in the workplace as long as protections are put in place to make sure people who are unable to be vaccinated for Code-related reasons are reasonably accommodated.” While there is a duty to accommodate based on a Code-protected ground, the OHRC also stated that “a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code.”
2. Accommodation
Upon determining that a refusal is based on a Code-protected ground, the Employer and Employee should work together to identify reasonably accommodations. These could include:
Continued remote work
Extended use of PPE and social distancing protocols
Regular nasal swab testing
3. Occupational Health and Safety Act (OHSA) and Work Refusal
Under the OHSA, employees have the right to refuse work that he or she believes is unsafe to himself/ herself or another worker. A work refusal sets off a series of steps to determine whether the work is safe or unsafe. If, however the employee is refusing to work because they do not agree with the requirements outlined in a mandatory vaccination policy, this is not a valid work refusal for unsafe work under the OHSA.
We have supported our clients with both drafting vaccination policies and strategizing the implications of doing so. When faced with individual circumstances, Employers should consider each on a case-by-case basis to determine what can and cannot be reasonably accommodated and to what extent they will enforce non-compliance. There are legal factors that must be considered including the impact of mandatory vaccinations, human rights, and termination entitlements.
This blog is provided as an information only and is not intended as legal advice.