Hopefully the vaccination status of the co-worker was from the co-worker and not the organization to minimize privacy concerns. If your organization is not willing/able/feel it is necessary to have a mandatory vaccination policy then it will need to continue to be 100% reliant on the measures that we are all used to now: barriers, physical distancing, masks, etc. to ensure the health and safety of all employees – vaccinated and unvaccinated. A vaccine mandate is just one tool that can be used to keep your employees safe. Communication is key to ensure both the vaccinated and unvaccinated are aware of the steps that are being taken to keep everyone safe at work.
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Town Hall | The Vaccine Policy Debate
September 7th, 2021 11:00-12:00PM
The great debate of 2021 for employers everywhere, vaccine policy may be the most contentious—and potentially important—decision employers and business leaders are facing today. The debate continues, with new federal and provincial mandates in other sectors.
Join us for this important town hall to hear perspectives from HR leaders and a leading BC employment lawyer on challenging policy questions:
- Can employers mandate the COVID-19 vaccine – or continue to require unvaccinated workers (or all employees) to mask?
- Can employers require proof of vaccination – or even ask employees to share their vaccination status?
- What is our obligation to ensure that employees do not contract COVID-19 in the workplace?
- What are the privacy considerations we need to balance in our policy?
- What is our duty to accommodate those who cannot be vaccinated? And those who refuse?
Join this important session for employers, executives, HR and health and safety professionals.
Having COVID testing as part of your approach to keep your employees safe is very likely an acceptable method of risk mitigation. It could also play a big role in accommodating workers with medical or religious reasons for not being vaccinated. You may be able to access rapid antigen tests for your workplace.
It is unlikely that WorkSafe or a health authority would help with a vaccination policy; it falls outside their mandates. Check with peers in the industry to see what they have done or consult with an experienced employment/labour lawyer or consultant. If one wanted to start building a first draft of a policy for their organization, we recommend the following (broad) steps: Start with the “why” which should be based on health and safety; using a health and safety lens should give clarity to whether a vaccine mandate is even needed in your organization. Once you have determined mandatory vaccination is appropriate, ensure that you have appropriate protections for privacy (don’t collect more than you need) and to accommodate workers with medical or religious grounds for not being vaccinated.
Dr. Henry advised that religious belief is not a legitimate reason for not getting vaccinated. Is this accurate?
I am not aware of this specific statement. However, she did advise that there will be no exemptions to the B.C. mandate and passport at this time, during this period of increased risk. As an employer, you do need to provide protection and accommodation to employees who are protected under the British Columbia Human Rights Code, such as for a medical or sincere religious belief. Under human rights legislation, protection of a religious belief or practice is triggered when a person can show that they sincerely believe that the belief or practice (a) has a connection with religion; and (b) is “experientially religious in nature”: Syndicat Northcrest v. Amselem, 2004 SCC 47 at para. 69. That being said, there have been no confirmed major religions to my knowledge that hold this belief. One driver for testing sincerity is the fact that no major organized religion objects to the vaccines, and Roman Catholic and other Christian, Jewish and Muslim leaders have advised followers to get the shots. Pope Francis went so far as to say that getting vaccinated was “the moral choice because it is about your life but also the lives of others.”
Does shaming/demeaning unvaccinated workers constitute workplace harassment, and if yes what would the consequences be?
Yes, it certainly is, employers should prohibit any form of harassment, discipline, reprisal, intimidation, or retaliation based on an employee's or contractor’s decision to get or not get vaccinated. Employees that discriminate against or bully a fellow employee or contractor because of their decision to vaccinate or not to vaccinate can be subject to discipline, up to and including termination for cause. A lot of employers have a Respectful Workplace Policy in place, which would may prohibit any form of harassment or discrimination at the workplace, including related to one's vaccination status and outline a complaint procedure for dealing with this. For our clients who implemented a Vaccination Policy, we have included language on this specifically in the Policy.
If an employee refuses to follow a workplace policy, an employer can discipline them according to the policy, including up to termination of employment. This is subject to the Human Rights Code, so it is important to obtain the reason why the employee is not following the policy and assess whether there is a duty to accommodate. Lay offs are tricky - absent seasonal workers, the right to lay-off in a written contract, or the employee’s clear agreement, a temporary layoff (even for one day) can be treated by the employee as a constructive dismissal under the common law, triggering the employer’s notice or severance pay obligations either under the employment contract or the common law. The British Columbia Employment Standards Act provides that after 13 weeks in any 20 week period, any temporary layoff would automatically become a termination under the Act unless the employer has applied for and received a variance from the Director. However, the Courts have held that this does NOT prevent employees from exercising their common law rights to claim a constructive dismissal if the layoff is less than 13 weeks. We covered this topic in an article available here. Please note there are different rules for unionized employers which will depend on the language of the collective agreement. There may also be exceptions for non-union employers, particularly in the health care or federal sector if any of the Public Health Orders or federal government mandates require your employee to be vaccinated in order to perform their duties. In any circumstances it is important to obtain professional advice before laying off an employee.
Can we make “fully vaccinated” a prerequisite to the terms of employment, especially for new job offers?
Yes, you can. Just be mindful that you still cannot discriminate against individuals with traits protected by the British Columbia Human Rights Code, such as medical condition or sincere religious belief preventing the protected individual from getting the vaccine. We have previously done a seminar on the “Art of Hiring” where we address human rights considerations when hiring new employees. If you would like access to these materials, please contact Chris Drinovz.