A New Frontier in Employer-Employee Relations
We are fortunate that as our Covid exposures and numbers fall and vaccinations increase – we are looking ahead to a post-pandemic reality with governments reducing restrictions and a large number of employees considering a return to their workplaces after working remotely for almost a year and a half.
As employees prepare to return to the workplace, employers are thinking about workplace vaccination policies. Employees are thinking about whether they need to be vaccinated and everyone is thinking about whether vaccines will become mandatory in general.
In British Columbia, there are currently no mandatory vaccination policies. However, the Provincial Government and Health Authority does have the ability to implement Provincial Health Orders making vaccination mandatory if mandatory vaccination became necessary. While province wide mandatory vaccination is possible such mandatory vaccination is unlikely. It is more likely that specific industries or workplaces may require mandatory vaccination.
Under British Columbia’s human rights legislation, the BC Human Rights Code, all persons are protected by the Code and employers are required to accommodate individuals where such accommodation is required. For many British Columbians mandatory vaccination could interfere with someone’s protected characteristics’ such as an underlying medical condition, or religious practice and beliefs. However, where workplaces are of a nature where employees, members of the public or clients of that workplace are at risk, mandatory vaccination may become a necessity. Persons working in healthcare and in healthcare facilities have been found to be required to submit to mandatory vaccinations for the purpose of protecting vulnerable patients.
When considering whether workplaces are required to have mandatory vaccinations employers must consider if a mandatory vaccine policy is being made in good faith or is otherwise a “bona fide” occupational requirement. That is, that there is a genuine need for employers to protect their employees and/or the clients or personnel they serve. While industries such as healthcare have required mandatory vaccinations, it may be possible that any industry where there is increased interpersonal contact and interaction with the general public or vulnerable persons, that mandatory vaccination may be required where other alternatives to maintain safe working conditions and safe services are not available. Employers are not only expected to provide a safe working environment for their employees but to likewise protect their customers and members of the public in their workplaces as well. Sectors such as education, restaurants and retail may be industries that could see mandatory vaccination. It is anticipated that vaccinations will be made mandatory in some educational settings including university residences, where mandatory immunization is already required for students.
In the event that mandatory vaccination is required in a workplace, employees who have underlying health concerns, are immunocompromised or are required to abstain for religious reasons, will likely not be required to be vaccinated if they possess characteristics that are protected under BC’s human rights legislation and are required to be accommodated. However, a person who is opposed to vaccination on account of an unfounded belief or unfounded concerns regarding the safety or effectiveness of the vaccine will likely not be afforded the same accommodation.
If an employer is required to keep a record of employees that are vaccinated, employers have to be cognizant of privacy concerns and be aware of the requirements of safeguarding an employee’s private information. For example, information about employees’ vaccination records (and medical information in general) must be kept private and secure, for a limited period of time. There are also limits as to the extent of the information an employer can ask for or need to know. For example, an employee can ask for a doctor’s note outlining a medical reason for why an employee must be exempt from vaccination but an employer is not entitled to specific health diagnoses.
While it is possible that mandatory vaccinations may be required in some industries for many industries, a mandatory vaccine policy may seem heavy-handed and cause employee morale issues if workplace tensions rise on account of vaccination rates and timing. Thus employers will need to be creative with exploring alternatives to mandatory vaccine policies. Options include in-house vaccination clinics – offering convenience to access vaccines without penalizing those employees who choose not to avail themselves of the opportunity – vaccine educational information, paid time off work to attend a vaccination clinic or offering other incentives for participating in the vaccination program. Moreover, the employer may continue to maintain current Covid safety protocols such as distancing requirements, banning communal eating areas, stringent cleaning and hygiene practices and/or keeping the office closed to the public. Ultimately the employer will need to make policy decisions balancing employees’ rights and workplace health & safety requirements.
Other important employer considerations that have developed in a post-covid workplace include sick pay policies, remote working policies and maintaining employee productivity, mental health supports and, for unionized environments, the effect on creating new policies or enforcing policies in light of pre-existing collective agreements.
Employers are encouraged to seek further legal advice if they plan to implement a mandatory vaccine policy or if they have questions about other related activities.