Vax advice

Lawyers Lisa Stiver and Kristin Kersey presented a webinar on behalf of the Winnipeg Construction Association offering valuable advice on how employers in the construction industry should approach the issue of COVID vaccination in their workplace and on jobsites. Here are some highlight points.

Are employers allowed to require employees to be vaccinated?
The short answer to this is, “yes.” Nothing prevents a private company from making vaccination status a condition of employment, and disciplining or even terminating employees who fail to comply. The pitfalls are all in the crafting of the policy and its implementation, but they are not insurmountable. The key is to avoid violating human rights rules regarding disability and religion. An employer has to make sure their vaccine policy does not prevent someone from working because of a medical condition that prevents them from being vaccinated, or a real religious commitment that forbids them from taking vaccines.

Privacy is another concern. Employers can ask for employees to provide proof of their vaccination status without violating any principles of non-consensual sharing of medical information. But the lawyers recommend the minimum amount of information be collected – essentially, the question is, “Are you fully vaccinated according to the public health authorities? Yes, no?” The information should be shared with as few people in the organization as possible, and the policy should clearly lay out what constitutes proof, who needs to provide it, who will have access to it and when it will be discarded. The same goes for test results.

If an employee refuses to be vaccinated, employers should be sure to explore all other options before dismissal, including working from home, modified hours or a different position altogether. Courts will look at whether there were options other than dismissal when deciding constructive dismissal cases.

Can I ask that new hires be vaccinated?
If a company includes in its job posting that only vaccinated people may apply, this could be construed as discrimination against people unable to receive a vaccine under human rights laws. The same could apply if questions about vaccination status are brought up in a job interview.

Instead, the requirement to be vaccinated should appear as a condition of employment at the offer stage and not be mentioned before that unless the candidate asks.

Are employees allowed to refuse to work in work-places without a vaccine mandate?
The short answer to this one is, “no.” Employers do have a duty to take reasonable measures to provide a safe workplace for employees. Failure to follow government guidelines for masking and social distancing has been considered a dereliction of that duty. But, so far, this duty has not been considered to go so far as to require a fully vaccinated workplace. That means employers can require employees who have been working from home during the pandemic to come back into offices, go to meetings, attend events and work on jobsites even if they will encounter unvaccinated people there.

An exception here is people with pre-existing conditions that make them especially vulnerable to viral infection or more likely to become dangerously ill if they do get COVID. The employer will have a duty to accommodate their condition under most provincial laws protecting the disabled. Employers will have to work out a way for the employee to work without being more exposed to COVID than they would be in their home life.

Procedures, policies and meetings, oh my
One point the presenters returned to frequently was the need for a clear written policy laying out expectations, procedures and penalties, if any. If an employee seeks an exemption from a requirement to get vaccinated on medical or religious grounds, the company should follow a procedure to hear the employee’s case and discuss options even if management feels strongly the exemption will not be allowed. This will be helpful in protecting against any potential human rights complaints. A company seeking to terminate an employee for violating a vaccination requirement should follow all the same steps as in any termination for cause: first and second written warnings with specific instructions and deadlines to comply.