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Vaccines and the law

Encouraging or requiring employees to get vaccinated – or refraining from doing so – remains a fraught issue across the country. Last fall, lawyers Lisa Stiver and Kristin Kersey presented a webinar on behalf of the Winnipeg Construction Association offering valuable advice on how employers in the construction industry should approach the issue of COVID vaccination in their workplace and on jobsites. Here are some highlight points.

Are employers allowed to require employees to be vaccinated?
The short answer to this is, “yes.” Nothing prevents a private company from making vaccination status a condition of employment, and disciplining or even terminating employees who fail to comply. The pitfalls are all in the crafting of the policy and its implementation, but they are not insurmountable.

Contrary to popular belief, people in Canada, including employers, are actually allowed to practice discrimination against one another…except on the very specific grounds laid out in the various pieces of human rights legislation. An employer has to make sure their vaccine policy does not prevent someone from working because of a medical condition that prevents them from being vaccinated, or a real religious commitment that forbids them from taking vaccines.

Many people resisting vaccine mandates reference the Canadian Charter of Rights and Freedoms. The presenters pointed out that this document only restricts government behaviour and challenges can’t be brought against private companies or individuals. 

Privacy is another concern. Employers can ask for employees to provide proof of their vaccination status without violating any principles of non-consensual sharing of medical information. But the lawyers recommend the minimum amount of information be collected. The information should be shared with as few people in as possible, and the policy should clearly lay out what constitutes proof, who needs to provide it, who will have access to it and when it will be discarded. The same goes for test results.

An employee that is fired for failing to comply with a vaccination policy that was brought in after they were hired could potentially have a constructive dismissal case, but it’s still unclear how the courts would view this. To protect themselves, employers should explore all other options before dismissal, including working from home, modified hours or a different position altogether. Dismissal in a union shop will of course be much harder and all these matters will need to be approached with reference to the collective bargaining agreement. Courts will look at whether there were options other than dismissal when deciding these cases.

The presenters made an important point about hiring once a vaccine mandate is in place at a company. If a company includes in its job posting that only vaccinated people may apply, this could be construed as discrimination against people unable to receive a vaccine under human rights laws. Instead, the requirement to be vaccinated should appear as a condition of employment at the offer stage and not be mentioned before that unless the candidate asks.

Are employees allowed to refuse to work in workplaces without a vaccine mandate?
The short answer to this one is, “no.” Employers do have a duty to take reasonable measures to provide a safe workplace for employees. Failure to follow government guidelines for masking and social distancing has been considered a dereliction of that duty. But, so far, this duty has not been considered to go so far as to require a fully vaccinated workplace. An exception here is people with pre-existing conditions that make them especially vulnerable to viral infection or more likely to become dangerously ill if they do get COVID. The employer will have a duty to accommodate their condition under most provincial laws protecting the disabled. 

What constitutes a valid exemption?
In their company policy, companies can exempt or require employees to have vaccines as they see fit. But the policy must provide for exemptions for medical or religious reasons, or risk falling afoul of human rights legislation. Courts have rejected claims of “singular beliefs” as grounds for gaining a workplace religious exemption from vaccines, and human rights tribunals have clarified the beliefs must be part of an established religious practice. 

Vax or test?
While a simple vaccine mandate may seem the simplest, the presenters pointed out several practical drawbacks. Terminating employees for violating the policy may attract legal challenges, no matter how justified the employer is. And these days no one can afford to lose good employees. Even if employees comply, their morale could be impacted. A more common approach has been to allow employees to not vaccinate but to require testing of those who do not. 

Procedures, policies and meetings, oh my
One point the presenters returned to frequently was the need for a clear written policy laying out expectations, procedures and penalties, if any. If an employee seeks an exemption from a requirement to get vaccinated on medical or religious grounds, the company should follow a procedure to hear the employee’s case and discuss options even if management feels strongly the exemption will not be allowed. 

Vaccination on the jobsite
Vaccination on construction sites can be mandated in a CCDC contract but the requirements must be reasonable and allow for the scope of work, with its inherent risks, that needs to happen. Contractors and subcontractors must be allowed to negotiate alternatives and accommodations where needed and possible. One unique problem in construction is the presence of several overlapping authority structures on every jobsite. Who’s the boss? This can make it hard to monitor and enforce any vaccination policy. In general, worksite health and safety is always the responsibility of the general contractor, and it will be up to them to ensure the compliance of the subtrades. •