Time to dive into a timely legal issue. We’ve received many inquiries from clients lately on the topic of vaccines and most are about employee vaccinations status.
At the time of writing this Blog, there is no Canadian Federal nor Ontario Provincial Law requiring proof of vaccination before being allowed to enter a specific area. However, on the Federal front, it is very clear from the current government’s messaging that soon (if I had to guess, by September 1) businesses that are Federally Regulated will require employees to be double vaccinated. This will impact airports, airlines, banks and the postal service as well as all other Federally Regulated businesses.
In the absence of Ontario legislation requiring double vaccination before being allowed into workplaces or other areas, businesses are being put in the difficult position of trying to balance protection of employees and customers from Covid-19, the privacy rights of employees and accommodating those who are not vaccinated and claim to fit within a protected right of the Ontario Human Rights Code.
This is a lot to put on businesses, some of whom are already having to defend wrongful dismissal litigation due to the poorly drafted amendments to the Employment Standards Act, 2000 by the current Ontario government.
The balancing act is specifically the following: vaccination status is health information. It is private and must be treated as confidential information by the employer, unless the employee agrees, in writing to have the information made available to co-workers and customers. If an employer wants this information, it should be for a legitimate work purpose – for example, working with patients who cannot be vaccinated, or who are over 80 and for whom double vaccination is less protection against the Delta variant. Once the employer has the information, they are then in a situation where, if the individual is not vaccinated, they have to determine what they do with the information and why the individual is not vaccinated.
The Human Rights Code will protect religious beliefs against vaccination. It will also protect those who have a disability (both physical or mental) that prevents them from being vaccinated and those who have a “strongly held belief” which is a creed that prevents them from being vaccinated. If the employee falls into one of the above categories, their lack of vaccination status is protected, and they have to be accommodated to the point of undue hardship on the employer. This means they may be required to work from home in order to accommodate them and they cannot be skipped over for promotion due to their vaccination status.
So, what is the best solution for businesses who want to restrict entry to double vaxxed employees and customers? Write your MP and MPPs telling them you want legislation supporting this.
This is a way to protect the economy. This is a way to get back to “normal”.
Also, this is a way to protect those with vulnerable immune systems, like double transplant recipients for whom double vaccinations don’t hit the same level of immunity as the rest of us.
Until the legislation is created and passed, I’ll just continue to be the bearer of the above bad news for businesses.
Also: if it isn’t clear from the above, I support legislation requiring double vaccination. I’m double vaccinated and I encourage you to be as well.
Inga B. Andriessen, JD