BIG READ: COVID vaccination policy advice from the Winnipeg Construction Association
By Patrick Flannery
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.
There has been much in the news about employees calling vaccine mandates violations of their human rights. Contrary to popular belief, people in Canada, including employers, are actually allowed to practice discrimination against one another…except on the very specific grounds laid out in the various pieces of human rights legislation. The relevant protected areas here are 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.
Many people wanting to resist vaccine mandates reference the Canadian Charter of Rights and Freedoms. The presenters pointed out that this document only restricts government behaviour and that Charter challenges can’t be brought against private companies or individuals. The relevant laws in this case are the various provincial human rights rules.
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.
An employee that is fired for failing to comply with a vaccination policy that was brought in after they were hired could potentially have a constructive dismissal case, but it’s still unclear how the courts would view this. To protect themselves, employers should be sure to explore all other options before dismissal, including working from home, modified hours or a different position altogether. Dismissal in a union shop will of course be much harder and all these matters will need to be approached with reference to the collective bargaining agreement. Courts will look at whether there were options other than dismissal when deciding these cases.
The presenters made an important point about hiring once a vaccine mandate is in place at a company. 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 workplaces 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.
What constitutes a valid exemption?
In their company policy, companies can exempt or require employees to have vaccines as they see fit. But the policy must provide for exemptions for medical or religious reasons, or risk falling afoul of human rights legislation.
Very few people are medically unable to take the vaccines. The company is well within its rights to insist on documentation from a health professional before allowing an exemption. In the event one is granted, there’s still a decision to be made about how, where and with whom the employee will work. At this point, however, the employee will have a case that they have a medical condition that needs to be accommodated.
Even fewer people are members of a religion that prohibits taking vaccines. All the major organized religions have stated their members are permitted, if not encouraged, to get vaccinated. Courts have rejected claims of “singular beliefs” as grounds for gaining a workplace religious exemption from vaccines, and human rights tribunals have clarified the beliefs must be part of an established religious practice. Beliefs suddenly adopted six months ago are unlikely to qualify. Again, if an exemption is granted, the question remains of how to integrate the unvaccinated employee into the workforce.
Vax or test?
While a simple vaccine mandate may seem the simplest, the presenters pointed out several practical drawbacks. Terminating employees for violating the policy may attract legal challenges, no matter how justified the employer is. And these days no one can afford to lose good employees. Even if employees comply, their morale could be impacted.
A more common approach has been to allow employees to not vaccinate but to require testing of those who do not. They clarified that no special medical setup needs to be in place to administer rapid tests – no clean room or extra PPE required. Often companies have employees administer the test themselves under the supervision of another person. The test results need to be treated with the same confidentiality as vaccine proofs. Some companies only require weekly testing but more common is every three days. One drawback to a testing regime is that it is not as reliable at preventing COVID from getting into the workplace as vaccination. Rapid tests are not perfect at catching the disease, and a person who gets infected shortly after taking a test may become infectious before having the next one. Then there’s the cost, estimated at $10 to $15 per test. Whether to pay that or attempt to recoup it from the employee is a problem with no good answer.
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. These should not start until after the deadline to be vaccinated has passed. The vaccination deadline itself needs to be imposed far enough in the future for employees to comply – the presenters recommended six weeks. The same goes for accommodation of employees who refuse to get vaccinated but are not going to be terminated. The employer has no duty to accommodate in these cases, but procedures to consider accommodation should still be followed.
Vaccination on the jobsite
Vaccination on construction sites can be mandated in a CCDC contract but the requirements must be reasonable and allow for the scope of work, with its inherent risks, that needs to happen. Contractors and subcontractors must be allowed to negotiate alternatives and accommodations where needed and possible. One unique problem in construction is the presence of several overlapping authority structures on every jobsite. Who’s the boss? This can make it hard to monitor and enforce any vaccination policy. In general, worksite health and safety is always the responsibility of the general contractor, and it will be up to them to ensure the compliance of the subtrades. CCDC boilerplate calls for adherence to all safety policies, local laws and contractural requirements on a site, so any vaccination policy of the project owner will need to be observed. Delays and costs incurred due to the application of a vaccination policy need to be addressed through the normal CCDC provisions for handling these things. The presenters recommended requirements for subtrades to be vaccinated be built into the tendering process upfront.