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| Nikita Gush |
The primary legal issues that create tensions as employers decide to implement — or not implement — COVID-19 vaccination policies and mandates are: (1) workplace health and safety; (2) human rights considerations; and (3) privacy protection of personal health-care information.
Context
COVID-19 has given rise to an unparalleled global pandemic. As government restrictions ease up and more employees are returning to their workplaces with the advent of COVID-19 vaccinations, employers are faced with ensuring that their workplace remains safe while also respecting employees’ human rights and privacy.
A recent poll by KPMG Canada identified that 62 per cent of small- and medium-sized businesses are planning to make COVID-19 vaccine mandates. As the law in this area expands and adjusts, it is important for all employers to understand how existing legislation interacts with and should inform their decision to implement — or not implement — a COVID19 vaccination workplace policy or mandate.
WorkSafeBC considerations
One of the primary legal issues concerning COVID-19 vaccination policies and mandates in B.C. workplaces is workplace health and safety. Arguably, the primary reason for implementing a COVID-19 vaccination policy is to increase safety in the workplace, for workers and the public alike, by reducing the risks of the transmission and negative health effects of COVID-19 and its variants. WorkSafeBC is an organization created by B.C.’s Workers Compensation Act (WCA). WorkSafeBC’s mandate is to create a province free from workplace injury and illness, and to help British Columbians have safe working conditions. The WCA has an associated regulation called the Occupational Health and Safety Regulation (OHSR).
The OHSR applies to all employers, workers and persons working in or contributing to the production of any industry that falls within the scope of the WCA — which happens to be the great majority of workplaces in British Columbia. The OHSR provides at s. 2.2 that: “Despite the absence of a specific requirement, all work must be carried out without undue risk of injury or occupational disease to any person.” As a result, employers have a duty to provide safe workplaces in accordance with the WCA, its regulations and WorkSafeBC policies and guidelines, and conversely, workers have the right to refuse unsafe work.
It may be the case that as COVID-19 cases continue to rise and protection measures are reduced, employees may find themselves in a situation where they decide that they are not safe at their particular workplace and choose to raise concerns about unsafe work to their employer, who will need to respond to these concerns. At this time, WorkSafeBC has provided the following statement in answer to the question of whether an employer can require a vaccination as a condition of employment: “Every workplace is different, so individual employers should seek legal advice when developing a mandatory vaccination policy, as they need to address not only workplace health and safety and employees’ interests but also consider labour and employment issues.”
WorkSafeBC’s above answer does not provide clear direction on which specific workplace health and safety factors an employer should take into consideration when deciding whether or not to implement a COVID-19 vaccination policy or mandate, and it leaves the question open to employers and their legal counsel to determine.
Human rights considerations
The other area of law that intertwines with the implementation of COVID-19 vaccination policies and mandates in the workplace is human rights. In B.C., the applicable legislation that protects human rights is the B.C. Human Rights Code (HRC).
The purpose of the HRC is to prevent, identify and eliminate specific types of discrimination prohibited by the HRC. The HRC sets out a list of personal characteristics that are protected by the HRC in the areas of employment, housing, receiving services and publications. These personal characteristics include race, colour, ancestry, place of origin, religion, sex, gender identity or expression, sexual orientation, physical disability, mental disability, marital status, family status, age, political belief and summary or criminal conviction.
In relation to employment, the HRC provides that employers have a duty not to discriminate against persons by refusing to employ or refusing to continue to employ them. In addition, the HRC provides that employers must not discriminate against a person regarding any term or condition of their employment. This includes a duty for employers to take all reasonable steps to avoid a negative effect based on a personal characteristic of an employee or potential employee — also known as the duty to accommodate.
Therefore, if an employer decides to implement a COVID-19 vaccination policy of any kind, they will need to be aware of their duty to accommodate employees who may have a protected characteristic that prevents them from being able to obtain a COVID-19 vaccination.
The relevant personal characteristics that might be at issue are physical disability, mental disability, religion and family status. It is important for employers implementing new workplace policies to be open and honest with their employees and enter into good faith dialogues about what can be achieved through accommodating the particular employee, in regard to their protected personal characteristic. If you encounter a situation such as this, it is advisable to receive legal advice from an employment lawyer.
Notably, the B.C. human rights commissioner made the following statement: “Ultimately, it is the position of B.C.’s Human Rights Commissioner that duty bearers can in some circumstances implement a vaccination status policy such as proof-of-vaccination requirement — but only if other less intrusive means of preventing COVID-19 transmission are inadequate for the setting and if due consideration is given to the human rights of everyone involved.”
As an employer considering whether to implement a COVID-19 vaccination policy or mandate for your workplace, it is important to consider potential human rights obligations that your company may owe to its employees.
Privacy law considerations
Employers often collect personal, private information about their employees. In workplaces that are not federally regulated, employers have duties under the Personal Information Protection Act (PIPA) to protect their employees’ private information. PIPA considers the collection, use, disclosure, protection of and correction of a person’s private information. Therefore, when an employer is collecting COVID-19 vaccine-status related information about their employees, they must utilize the same types of best practices to protect their employee’s COVID-19 vaccination status as they would any other personal, private health-care information of an employee.
While existing laws protecting personal privacy interests continue to apply, it will be helpful to receive some more specific direction from the Office of Information and Privacy Commissioner of B.C. regarding best practices for employers as they choose whether to implement workplace policies concerning COVID-19 vaccinations and gather an employee’s personal health information.
Employment law considerations
Employers often introduce new workplace policies. However, if an employer implements a workplace policy that leads to a unilateral change to a fundamental term of an existing employee’s employment contract, the employee may have the ability to assert constructive dismissal, exposing the employer to liability in regard to reasonable notice and other damages. Requiring new employees to abide by an existing COVID-19 vaccination policy or mandate should be an easier feat.
However, it is still important to consider whether the decision not to hire a particular employee due to their refusal to receive the COVID-19 vaccine, is because of a protected personal characteristic, which could give rise to a complaint at the B.C. Human Rights Tribunal.
Summary
In summary, while an employer can implement a workplace policy that concerns COVID-19 vaccinations, it is integral that employers be mindful of the landmine of related legal issues, such as workplace safety, human rights, privacy protection and employment law generally when drafting and implementing such a policy. As a result, it is advisable for employers to speak with an employment lawyer before implementing a COVID-19 vaccination policy in their workplace.
Nikita Gush is an employment lawyer at Doak Shirreff Lawyers LLP. She can be reached at ngush@doakshirreff.com.
Photo credit / Rainer Lesniewski ISTOCKPHOTO.COM
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