With the ever-changing global pandemic, employers have had to adapt quickly as the scope of protecting the health and safety of employees in the workplace has vastly expanded to include protection against the COVID-19 virus. Vaccination Disclosure and Rapid Antigen Testing Policies have now become a common method of protection used by employers.

The differing opinions surrounding this new and unchartered landscape in the workplace has created considerable tension and a lot of uncertainty. Questions regarding whether these policies are legally permissible, if they violate personal freedoms, and what right employees have to refuse to comply with the policies have been asked throughout Ontario as the mandates and directives from government sources and health agencies fluctuate.

Although there has been little guidance from the courts regarding such policies, there has been a clear trend in the drafting and application of policies that require employees to show proof of vaccination or submit to Rapid Antigen Testing. The reoccurring theme of “reasonable” and “balanced” provide drafters and employers with parameters in dealing with this difficult and very real-world implementation. How “reasonable” and “balanced” are defined can differ based on singular beliefs surrounding vaccination and the pandemic as a whole. That being said, SDLaw would like to provide a little clarity on how these terms, in regards to such policies, are generally being defined.

For a vaccination policy to be considered valid, it needs to take into consideration the overall safety and protection of employees, individual privacy concerns, human rights protections and discrimination. Employers have an obligation to provide a safe and healthy workplace for their employees. To strike a balance, a policy must look to the general health of the entire workforce and what protections need to be in place to ensure the employer is meeting their obligations, but also weigh in the fact that employees will be disclosing personal health information that needs to be protected. The employer must also ensure that they are not discriminating against any employees who cannot receive the vaccine due to certified medical reasons, valid religious reasons, or a reason under one of the enumerated grounds of human rights legislation such as the Ontario Human Rights Code or the Canadian Human Rights Act. If an employer can find a balance between protecting all employees' health and safety, individuals' privacy concerns, and providing accommodations for those employees with exemptions, then a COVID-19 Vaccination Disclosure Policy and/or Rapid Antigen Testing policy will likely be considered reasonable.

A reasonable policy must also consider the timelines for implementation of these protective measures. If an employer provides a policy that states that all employees need to be vaccinated by a certain date, but the employees are only given 5 days to meet that date, it could be deemed as unreasonable because employees need some time to consider their options, get advice if needed, and potentially become vaccinated. If the employer provides a reasonable time frame, for example 2 weeks at a minimum, then it gives employees a reasonable chance to work towards compliance in accordance with the date the employer has set.

Of course, there will always be some employees who do not agree with the policy and do not wish to comply. In this kind of scenario, we recommend booking a consultation with one of our lawyers to discuss the policy in light of the circumstances. Generally, if a policy is considered reasonable and balanced, then if an employee decides not to comply with the policy it could mean that the employer has the right to place the employee on a leave without pay (Infectious Disease Emergency Leave) or apply progressive discipline up to and including termination. However, there are parameters surrounding leaves and progressive discipline that must be considered on a case-by-case basis.

Remember, each policy is different and should therefore be examined to ensure it is reasonable and balanced. Our firm has experience drafting, reviewing, and assisting in implementing these policies for employers. We support both federally and provincially regulated employers. We also have experience advising on employee rights, assisting employees to understand these policies and assess whether they may be considered reasonable and balanced. Please reach out to our firm at 705-268-6492 if you would like to book a consultation with one of our lawyers. We would be happy to help you navigate this complex and rapidly evolving area of employment law.