To Mandate or Not?
The recent announcement by the federal and provincial governments of mandatory vaccination programs has many employers considering implementing mandatory vaccination or proof of vaccination policies in their workplaces. This includes Canada’s Big Five Banks, which have recently announced that they will be implementing a proof of vaccination policy for their employees beginning in the fall.
In developing vaccination policies, employers must consider a number of factors, including workplace health and safety, employee privacy, the collection of health and safety information, and human rights issues. As the BC Human Rights Commissioner stated in her report on vaccination policies in the workplace, employers must balance the following overarching principle in setting mandatory vaccination policies:
No one’s safety should be put at risk because of other people’s personal choices not to receive a vaccine, and no one should experience harassment or unjustified discrimination when there are effective alternatives to vaccination status policies.
- Is the policy evidence based? Is the risk of transmission in your specific workplace sufficient to justify policies that restrict individual rights for the purpose of protecting collective public health or workplace safety?
- Is it time limited? As the risk of infection hopefully diminishes over time, employers must consider whether a mandatory vaccination policy is still required to protect the health and safety of their workers.
- Is it necessary? If less intrusive measures do not work well enough to prevent transmission in a given setting, vaccination policies may be implemented.
- Is employee privacy maintained? Employers must limit the collection of highly sensitive personal health information and ensure collection of each employee’s vaccination status is done in the least intrusive manner possible and in accordance with privacy legislation.
- Are there accommodations for employees that cannot receive a vaccination for a valid reason? Employers must accommodate employees that have valid human rights-related reasons for not receiving the vaccine, up to the point of undue hardship. This does not include employees who choose not to get vaccinated as a matter of personal preference.
This is a complex and ever evolving area that requires significant flexibility and consideration by employers. We recommend that employers obtain legal advice and have the assistance of a lawyer in crafting a vaccination policy tailored to their business – one that strikes the appropriate balance of ensuring collective health and safety in the workplace and protecting individual privacy and human rights.