Vaccination and the workplace. A lawyer answers some questions
What rights do employees and employers have when it comes to COVID-19 vaccinations?
The rollout of COVID-19 vaccines in Nova Scotia is leading to questions about how it will affect workplaces and what obligations employers have in terms of ensuring occupational health and safety.
Can vaccination be made mandatory in workplaces? And what rights do employees have if they are unable to be vaccinated for medical reasons or simply choose not to get the vaccine?
Mark Tector is a partner at the law firm Stewart McKelvey in Halifax who specializes in labour and employment .
He spoke to Portia Clark of CBC's Information Morning on Tuesday and answered questions about COVID-19 vaccinations and the workplace.
Here is that conversation, edited for clarity and length.
Q: People are wondering about how this is all going to go. Have you been getting a lot of calls around this?
A: Yes, we are getting calls and it's more of a go-forward problem or issue, because right now we don't all have it. So employers can't make it mandatory right now until we have the supply. But it is certainly a question we're getting.
Q: So employers do have the option of making it mandatory outside of, say, health-care settings?
A: It's a qualified yes, in the sense that under occupational health and safety, there is a duty to ensure the health and safety of the workplace, both the employees in the workplace and those that come into the workplace. And so under that, an employer would have the ability to roll out a policy in relation to vaccination and a requirement to vaccinate -— qualified and with some conditions — but they could introduce that.
Q: If people have a medical reason to not take the vaccine, where do they stand?
A: Our sort of best practice and advice to employers and discussions go along the lines of promoting voluntary vaccination. But then if we get into requiring it, the employer has that ability. And so under human rights legislation, there would be some protections and in preventing discrimination based on good faith, a medical issue. And in those circumstances the employer and the employee would engage in a consideration of what possible accommodation options exist and to see if the employee can be accommodated.
And then you might get to a situation where accommodation options are explored and exhausted, that the employment of the person can't be continued or someone can't be hired into a workplace because the obligations in the workplace are for the employer to ensure health and safety.
Q: The accommodations might be a way of almost negotiating your way to something that can work, including operating from home for a time. But if there's not a way to bring them back safely, could that amount to the equivalent of being fired?
A: You could be let go in certain circumstances. The idea of accommodation under human rights, assuming that we're dealing with a good-faith refusal, there would be situations where someone has a good-faith medical issue. Others, would be refusing, just like people refuse to wear masks, but not on the basis of any medical condition. That's a different category. But the person that has a medical issue, you'd explore the accommodation, go through the accommodation process, see if there are reasonable alternatives. And if not, you might get to the point of letting someone go.
Q: And for the person who just doesn't want to get a vaccination without a valid medical reason, what about them?
A: Well, if that's the case, there's nothing that then protects them under human rights. And if they don't have a [valid medical] reason like that, then there's not that protection — the employer can go forward with its policy.
People have choices, but that doesn't mean that there's not consequences to them. And others in the workplace, not just the employer, have obligations to ensure the health and safety of the workplace and other employees. So if an individual is going to make that choice, they might not be able to work in that workplace, especially if they're dealing with high-risk individuals.
Q: And can employers demand proof of vaccination? It is health information we're talking about here.
A: So there's different workplaces. There are unionized workplaces, non-union. And so there are different considerations in different workplaces. Also, if you're working for a government agency, there'd be different considerations there as far as obtaining the medical information and then storing it safely.
But essentially, especially in a non-unionized workplace, you could ask for proof so that you ensure [you are] meeting your obligations under occupational health and safety. If you get that information, it's like any other personal information that you're getting from an employee in the usual course and you'd ensure that it's kept securely and privately.
Q: So your fellow employees wouldn't necessarily have the right to know whether you have or have not had the vaccine?
A: Well, that's right. But I think to people coming back into the workplace when, for instance, we see the social distancing requirements perhaps diminish or the mask requirements diminish as we transition more of the population of being vaccinated and people are coming back into work. If people are to start taking off their masks, for instance, other employees might be worried about that. And if you have a policy that says if you're in the workplace, you've either been vaccinated or we've addressed it pursuant to this policy — you're going to maybe address some of those concerns that other employees would raise.
If you come into the workplace, you're vaccinated and then perhaps we're at a stage where we're not wearing masks. You want some reassurance that others in the workplace haven't made a choice not to take the vaccine and then might be putting you and others in your family at risk.
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With files from Information Morning