Vaccinations in the Workplace: Do’s and Don’ts During Return-to-Work

Vaccinations in the Workplace: Do’s and Don’ts During Return-to-Work

Posted on June 28, 2021

As vaccination endeavours ramp up in Manitoba, quickly changing rules and policies have left many employers feeling confused. What does life after COVID-19 protocols look like? Can we mandate vaccinations in the workplace? How do we balance a safe return-to-work plan while respecting our employees’ individual rights and comfort levels?

CME and Made Safe have compiled a list of frequently asked questions along with additional advice to help you navigate this quickly changing transitional period. By addressing our members’ concerns – and with the help of industry professionals – we hope to provide a sense of clarity to help you return to work.

VACCINATIONS IN THE WORKPLACE
Is it possible to mandate vaccines for employees?

One of the most controversial topics among employers and employees alike is whether or not vaccines will become mandatory. Under occupational health and safety legislation, employers have a legal duty to take all reasonable precautions to protect the health and safety of their workers. It is generally unlikely that Canadian employers will be able to force an employee to be vaccinated, particularly if the employee has a legitimate, bona fide human rights reason that would prevent vaccination. These may include allergies, religious reasons, or other protected characteristics.

What about visitors or contractors?

If you run a business that commonly welcome customers, contractors or other visitors, is it possible to permit entry only to those who have been vaccinated? In short, no. It is strongly recommended that you do not restrict access to non-vaccinated individuals as this can be seen as discriminatory, especially in cases with a legitimate medical, religious, or other protected characteristic driver. Rather, you may offer to remove COVID controls (e.g., mask wearing if allowed under the current public health requirements) upon proof of vaccination. If a visitor does not wish to disclose this information, they must abide by existing health and safety protocols to ensure the safety of other visitors and staff.

BEST PRACTICE GUIDELINES
WHAT IS REASONABLE?

A common question we’ve been hearing is why masks can be mandated yet vaccinations cannot. This is a theme that has caused frustration throughout the pandemic. When trying to think about where to draw the line, a key term to remember is reasonableness. What is considered “reasonable” in the eyes of a courtroom drives many important policies and creates the basis for what you can and cannot mandate in the workplace. “Fair, proper, moderate under the circumstances, rational, and appropriate” will be included in the test for reasonableness.

Mandatory vaccinations, in most cases, are described as unreasonable. Vaccines can be defined as invasive as they are required to enter the body as part of their process.  In contrast, masks are external, can be removed easily, and most masks used in public settings are less impactful than the respiratory protection that is currently used in many workplaces.

Conversely, there are instances where being vaccinated may be a condition of employment. For any specific cases, it is strongly recommended to seek legal council before proceeding.

MANAGING MEDICAL CONFIDENTIALITY
Is it possible to ask an employee or client their vaccination status?

Individual health status and personal medical information is deeply private and typically confidential, particularly as it relates to diagnostic information. Nonetheless, certain circumstances may justify employers asking about vaccination status where it is reasonably necessary for a legitimate reason. Be aware, though, that the employee or client is under no obligation to share that information with you and the answer must be treated as confidential medical information.

It may be preferable to implement a policy that states that in the absence of proof of vaccination, all COVID-19 protections will stay in place.

INCENTIVISING VACCINATIONS
Incentives for employees who pursue vaccination:

In the interest of increasing the number of vaccinated employees in their workplaces, many employers are considering offering incentives to employees who pursue vaccination, including vaccination bonuses, paid time off for vaccination appointments, employee recognition programs and the opportunity to return to in-office work environments before other cohorts. While well-intentioned, employers must be mindful of possible pitfalls, like if an incentive program results in differential treatment of groups of employees on the basis of a protected human rights ground and so on. This means, those who are unable to receive a vaccine due to legitimate protected characteristics, such as medical or religious reasons, must still be considered for the same incentives.

In the case of a monetary incentive, is it possible to ask for proof of vaccination?

Yes, monetary incentives can be tied to demonstrating proof of vaccination. This would likely be considered a reasonable request. However, as mentioned above, it could be considered discriminatory if persons who are unvaccinated due to medical, religious, or other protected characteristics are excluded from access to the incentive.

Similar rules apply in the case of a raffle or lottery incentive structure. Additionally, though, if you wish to announce the winner of the raffle/lottery, you must get consent from the winner(s) beforehand.

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Head to our Vaccinations in the Workplace Tip Sheet to see more detailed answers to these questions and more.