Updated: April 28, 2021
Posted: February 16, 2021
By Natalie Tymchuk, Partner, Amy Abbott, Partner, and Tracy Zimmer, Student-at-Law
April 21, 2021 Update
- On April 21, 2021, the Government of Alberta amended the Employment Standards Code. Effective immediately, all working Albertans are allowed to access a minimum of 3 hours paid leave to get each dose of the COVID-19 vaccine. For more information on this and other job protected leaves specific to COVID-19 please see our blog at: Updates to the Employment Standards Code: Job protected leaves for COVID-19.
The COVID-19 pandemic has been riddled with uncertainty and unanswered questions for workplaces. Now, with a vaccine available, more questions arise including whether or not an employer can choose to implement a mandatory COVID-19 vaccination policy. There are currently no public health laws in place mandating vaccinations for COVID-19. Although Alberta’s Public Health Act allows government officials to require mandatory immunization against diseases during a public health emergency, the premier of Alberta has stated that the government will not be mandating vaccination for individuals. However, at this time, this does not prevent employers from making their own choice about implementing mandatory vaccination policies in the workplace.
Although this topic is not novel, it is rarely encountered; an employer’s ability to impose vaccination will require a contextual analysis of the specific workplace. Any mandatory vaccination policy will need to be reasonable, provide a clear benefit and show that compulsion is required in order to ensure protection. The policy would need to be justified as a necessary measure to provide a healthy and safe workplace for workers and/or the public.
It is likely that employees working with vulnerable populations could be required by their employers to be vaccinated. In this context, it is reasonable for the employer to take extra precautions to protect its vulnerable clients from the risks associated with COVID-19. For employees not working closely with individuals who are at greater risk from COVID-19, it may be more challenging for their employers to prove a justifiable need for a mandatory vaccination policy.
Any mandatory vaccination policy will need to comply with:
1. Human rights legislation
- The Alberta Human Rights Act (AHRA) prohibits discrimination against any person on the basis of protected grounds. If an employee refuses to get vaccinated due to a credible medical, religious or other protected reason, an employer has a duty to accommodate, up to the point of undue hardship, or would have to prove that the policy is a bona fide occupational requirement.
2. Occupational health and safety legislation
- Under Alberta’s Occupational Health
and Safety Act, employers have a duty to take reasonable efforts to protect
the health and safety of their employees in the work environment, and employers
risk being issued orders and/or penalties if they do not fulfill their health
and safety obligations. Currently for COVID-19, employers must:
- follow all public health orders and recommendations (e.g. requiring masks, limiting gatherings, etc.);
- implement workplace practices that limit the risk of exposure and spread of the virus to employees and members of the public entering their premises.
3. Privacy legislation
- A request for an employee to disclose whether they have been vaccinated needs to respect any limitations on the collection and use of an employee’s personal information.
Risks Associated with a Mandatory Vaccination Policy
- Deciding to vaccinate can be a deeply personal choice and many people have strong feelings about it. Forcing people to choose between getting vaccinated or keeping their job, without regard to individual circumstances, may lead to litigation or human rights complaints.
- Concerns have been raised by some employment lawyers surrounding liability issues for employers, in relation to adverse effects employees may experience now or in the future if employers demand that employees get vaccinated. It is unclear, given the novel nature of a pandemic in modern workplaces, whether or how the Courts might find that an employer is liable.
It is also unknown at this time whether or not an employee’s refusal to be vaccinated will be considered as just cause to terminate employment, or whether it would be considered a without cause termination. Employers should consider whether a mandatory policy might result in financial costs of ensuring a proper notice period or pay in lieu (severance) is provided.
Implementing a blanket mandatory vaccination policy is an extreme step. Such policies have a higher risk of being considered unreasonable or inconsistent with the principles of employment law. Employers should consider the following options as alternatives to a policy:
- Begin with educating staff on what the vaccine
is and the importance of being vaccinated for both the safety of themselves and
the safety of others. Some people may be refusing to get vaccinated out of fear
of the unknown or anxiety, distrust and stress surrounding any misconceptions
about the vaccine.
- Consider different activities (e.g. distanced
from others) or remote work for those who are not vaccinated to remove them
from close contact with others.
- Allow employees to choose between vaccination or
taking a leave of absence (e.g. vacation time, special protected COVID-19
related leaves, or unpaid leave). Once the pandemic is under control, they may
be called back to the workplace. This might incentivize employees to make the
choice to get vaccinated.
- Require unvaccinated employees to undergo
regular COVID-19 testing, remain under health screening requirements, and
isolate if symptomatic.
- Before implementing a mandatory workplace vaccination policy, ensure there is sufficiently convincing evidence that the policy meets the legitimate needs of the workplace and that the policy is reasonable. If the policy is challenged, the onus is generally on the employer to justify its reasonableness on both health and safety grounds.
- If a policy is created, it must be clear and
unequivocal. Before it is implemented, ensure that all employees are made
aware of the policy and the disciplinary consequences, and provide employees
with an opportunity to request human rights accommodation. The vaccine will
need to be available for all employees to access, and a reasonable amount of
time must be provided for employees to comply with the policy.
- Once implemented, the policy must be applied
and enforced consistently.
- If an employee refuses, the employer needs to
understand why and ensure it fulfills its duty not to discriminate, by providing
reasonable accommodation to employees who require it.
Of course, the government may implement changes to the law in Alberta that could further impact an employer’s ability to implement a vaccination policy. The considerations noted above are simply a reflection of what employers should be aware of at this time.
you have any questions about your rights and obligations as an employer or
employee, please feel free to contact our
Employment Services Practice Group. Our team can work with you to help
ensure that you are making the most informed decision.