While there is currently no federal or provincial legislation in Canada requiring mandatory COVID-19 vaccination for all employees, we are seeing more and more municipalities implementing requirements for their employees, consultants and contractors.
This is a controversial issue and muniSERV is not speaking out for or against these policies. We believe that municipalities have an obligation to protect the health and safety of their employees, as well as their residents and the community as a whole. Although implementing a mandatory vaccination policy poses potential legal risks, such as human rights and privacy claims, most municipalities are moving forward. This blog is meant to help clear up some misconceptions and to help municipalities make informed choices when developing, implementing and enforcing their vaccination policies.
Human Rights
Human rights legislation, pertaining to employment, prohibits discrimination on certain grounds, including disability, sex and religion. If an employee refuses to comply with mandatory vaccination policies with a justifiable exemption, the employer must make accommodations. These can include working remotely or more specific measures like increased PPE or modified work hours. Many municipalities are requiring staff who have are not fully vaccinated to attend vaccination education training and undergo routine COVID testingPrivacy Concerns
In most Canadian provinces, an employer may collect, use or disclose personal employee information only with their consent and for reasonable purposes. In order to enforce a mandatory vaccination policy, employers would be required to ask employees if they are vaccinated. This qualifies as the collection of personal information, which means that the employee would have to consent but also that the employer must demonstrate that they are collecting the information for a reasonable purpose.
In this case, the employer could reasonably request vaccination information but only to be used for the implementation of vaccination policies, health and safety protocols and infection control measures. This information should, ideally, be kept separate from regular personnel files and only accessed with required.
Termination
An employee who refuses to be vaccinated because of a medical condition or religious belief cannot have their employment terminated as that would be considered discrimination under the human rights code. But, the reality is that employers can invoke a “without cause” termination as long as the proper severance is paid.
Non-compliance with vaccination policies could leave employers in a delicate situation, forcing them to discipline their employees and even possibly terminate their employment.
Unionized Employees
Since many municipal employees are also union members, municipalities must work closely with the unions before finalizing and implementing their vaccination policies. Workplace safety is a founding principle for most unions but the pandemic has produced new obstacles for everyone.
Of course, it is always best that municipalities explore all of their options and obligations when developing, implementing and enforcing their vaccination policies.
