As many employers gear up to return employees to the workplace, 62 per cent of Canadian small- and medium-sized businesses are making or plan to make COVID-19 vaccinations mandatory for their employees, according to a new poll by KPMG in Canada.
“Businesses are grappling with how to navigate the issue of mandatory vaccination and determine whether or not they are legally permitted to require their employees and, in some cases, their customers, to provide proof of vaccination,” says Norm Keith, partner, employment and labour law, KPMG Law LLP. “Our poll found a wide consensus among employers that vaccination is the most effective way to protect workers and customers and key to avoiding a new wave of infections and lockdowns.”
The KPMG poll also found that the vast majority of businesses support mandatory vaccinations and vaccine passports to avoid another lockdown.
“With so many different approaches across the country, Canadian companies are seeking legal guidance and advice on vaccination policies for their workplaces,” says Keith. “While some workplaces have taken steps to make proof of vaccination mandatory, others feel that unless mandated by government, it may be too onerous for them to make it a condition of continued employment. Overall, employers need to balance their health and safety legal duties with an employee’s privacy interests and human rights law protections.”
When implementing a mandatory proof of vaccination policy, a key legal consideration for employers is the actual safety risks in their workplace, particularly where there is close contact with co-workers or vulnerable people. As well, some workplaces are a higher safety risk, such as health care or long-term care for the elderly, education, childcare and emergency services.
Key poll findings:
- 62 per cent are implementing or plan to implement mandatory COVID-19 vaccination for employees.
- 84 per cent agree that vaccines are key to avoiding another lockdown and should be mandatory.
- 84 per cent support vaccine passports to perform certain jobs or enter certain places.
- 85 per cent of male respondents support vaccine passports vs. 79 per cent of women; Support for mandatory vaccination was also slightly higher among men (85 per cent) vs. women (81 per cent).
- 90 per cent feel they are well-prepared and organized in bringing employees back to the workplace safely
Keith points out a challenging situation may arise when an existing employee is unwilling to vaccinate or provide proof of their vaccination status. Employers have legal duties and responsibilities and, depending on their specific circumstances, need to exercise reasonableness to avoid constructive dismissal claims. Here are some key considerations for employers:
- Employers have a legal obligation to keep workers safe;
- Recognize and accommodate exemptions based on disability and religious beliefs protected by human rights law and the duty to accommodate;
- Assess whether alternative measures such as rapid testing, social distancing, and minimizing time worked in close proximity to others should be considered;
- Know that workers also have a legal duty to not work in a manner that may endanger others;
- Protect the confidentiality of employee vaccination data;
- Be flexible, listen to employee concerns, and enlist workplace joint health and safety committees in developing and implementing policies.
“In general, we recommend that employers receive legal advice when putting in place any COVID-19 safety measures to reduce a wide range of risks. This includes implementation of a vaccination policy that clearly communicates employer commitments and expectations for employee safety,” said Keith.