Covid-19 in the Workplace: What Employers Can and Cannot Do

As we return to normalcy, employers and employees across Canada are dealing with how to resume work together and contact the public. The extraordinary challenges and circumstances of the pandemic demand new policies and safety measures still in development.

This article will go over the rights, obligations, and recommendations that exist in British Columbia and answer some of your most pressing questions, such as:

Can an employer:

• Make Covid testing mandatory?
• Require employees to get vaccinated?
• Require employees to disclose if they have been vaccinated?
• Terminate or discipline an employee for refusing to get vaccinated

Currently, there is no specific legislation that mandates employees to be vaccinated; however, the Occupational Health and Safety Regulation (section 4.1) does state that “A workplace must be planned, constructed, used and maintained to protect from danger any person working at the workplace.” This means that in work environments that meet certain conditions, an employer might be justified to make Covid testing and vaccination a condition of continued employment.

The Privacy Commissioner of Canada has warned that requiring employees to prove vaccination is an encroachment on their privacy. Therefore, an employer must carefully weigh the employee’s privacy rights with their own duty to provide a safe work environment. Below, we will explore how such requirements should be outlined and the consequences of missing the crucial steps when putting them into practice.

Across the country, employers are dealing with employees who:

• refuse to be vaccinated, refuse to provide proof of vaccination, or refuse to be tested due to personal or religious beliefs
• have medical contraindications which prevent vaccination
• object to vaccination because masking and social distancing measures are already in place and other co-workers may already be vaccinated

Employees have the right to refuse vaccination and to explore other alternatives, like working from home. How employers manage information, safety, and civil rights might be the deciding factor between a smooth transition and a legal action against them; therefore, obtaining legal advice can save employers time and money.

The short answer is: yes. Employers can make covid testing mandatory in certain situations because it is the employer’s duty to provide a safe work environment, which the Health and Safety Act mandates.

It might be possible in workplaces where:

• employees work close to one another
• the health and safety of employees and customers is at stake

As in the case of nursing homes, an employer might have sufficient grounds for requiring Covid testing as a condition of continued employment. However, the decision comes with possibilities of privacy complaints, lawsuits, ministry of labour complaints, and claims of discrimination under the Human Rights Code.

If an employer decides to proceed with the testing requirement, then there are several considerations:

• Necessity: would physical distancing, hand washing, and masking be insufficient measures to keep employees and the public safe? Are there non-invasive safety measures already in place to avoid contagion, such as hand-hygiene stations, cleaning procedures, ventilation, and working from home accommodations?
• Test alternatives: nose swab, throat swab, temperature taking.

We also have some recommendations an employer might follow:

• If offering testing at the workplace, have a healthcare professional conduct the tests to create trust in the process
• Obtain written consent from each employee before conducting the test
• Collect only the most essential medical information from employees
• Explain how the medical information will be used, stored, and disposed of

Implementing a testing policy may be more feasible than vaccination, and it may be enough to keep employees and customers safe without implementing other more invasive measures.

It’s unlikely that an employer can require vaccinations unless the workplace’s other measures are deemed insufficient, and the safety of the workers and public is at stake (i.e., bona fide occupations, such as first responders, hospitality and health care workers).

Though employers cannot demand or mandate Covid-19 vaccines, it is their right to request employees be vaccinated. However, they cannot enforce nor penalize employees who refuse to do so.

In certain circumstances, employers can impose restrictions on non-vaccinated employees, such as restricting site access, tasks performed, contact with other groups within the work environment and the public (more on this topic below). The legality of the application of such restrictions is on a case-by-case basis and would depend on the organization’s functions and services.

Employers who decide to pursue a requirement for Covid-19 vaccination should make sure it doesn’t conflict with any existing contracts or collective agreements, that there are available vaccines, and that no less intrusive methods are sufficient. After these considerations, employers should make it a policy of the organization, include it in employment agreements, and always allow for human rights accommodation.

These policies should:

• Be reasonable and fair
• Be clearly drafted and communicated to employees and other stakeholders, like unions or contractors
• Set clear expectations, rules, and consequences of breach
• Deal with discrimination, as they may have valid medical, religious, or other reasons not to comply.

Offer accommodations such as:

• the option to vaccinate or wear a mask and be tested regularly
• The opportunity to work from home (where possible)
• Assigning employees to different tasks
• the option to take a leave of absence without pay or to use vacation/banked time

Covid-19 is unique, and arbitrators have acknowledged that it is far more contagious and lethal than other viruses like influenza. There are many uncertainties as scientists continue to understand its symptoms, transmission, and long-term effects. Furthermore, the duration of the vaccine’s effectiveness is unknown, and the appearance of new strains threatens the possible evolution of a variant not covered by the existing vaccines.

Once again, unless an employer can establish the legitimacy of such a request, it is unlikely that it would be advisable. Employers should educate employees on the importance of such a question and why it is necessary to contain the disease.

The personal medical information of employees is private and confidential and should be treated with careful consideration. Again, such a requirement depends on the type of function or service the organization fulfills. For example, is it a bona fide function or services like a hospitality service or health care? Do the employees interact with vulnerable populations? Is it an essential service?

If an employer decides to move forward with the requirement, we have some recommendations to implement it successfully:

• Make it policy and part of employment agreements.
• Set out what type of proof of vaccination is acceptable.
• Include a request for which vaccine they received, as this may become important as more variants appear in the future
• Commit to and explain the protection and privacy of employee information
• Educate and motivate employees.
• Offer alternatives if they don’t wish to disclose such information: remote work, masking, vacation time, leave of absence, alternative duties.

Asking about vaccination may lead to acts of discrimination against those who don’t want to vaccinate. Therefore, it is imperative that the employer commits to confidentiality and proactively dealing with discriminatory comments and actions. If for any reason an employer finds it necessary to use the information provided, they should omit the employees’ names and any other identifying information.

Employers implementing policies during the pandemic must keep in mind that asking about vaccinations, requesting testing, and vaccinations themselves, are all collections of private information and could trigger privacy concerns that result in:

• Privacy complaints
• Lawsuits
• Ministry of Labour complaints
• Claims of discrimination under the Human Rights Code

We recommend that an employer’s policy on Covid-19 should collect only the most necessary information and contain:

• Reasons for the collection of such information
• The purpose of the policy
• An example of the kind of acceptable proof of vaccination
• The consequences of breaching the safety procedures and non-vaccination
• How the information will be used, stored, and disposed of

The pandemic is a new situation for all of us, and employers should seek legal advice before implementing any measure to ensure its viability. Our experienced lawyers can help employers and employees ascertain their rights and obligations during this trying time. Give us a call for a free consultation.