In the continuing Covid-19 pandemic, employers have an increased interest in ensuring the safety of their workplaces and employees. To that end, many employers are considering implementing mandatory vaccination policies.
On July 13, 2021, the British Columbia Office of the Human Rights Commissioner (the “HRC”) released guidance for employers, governments, and other service or housing providers intending to implement mandatory vaccination policies. The HRC refers to these policies, which can be found here, as vaccination status policies.
The HRC highlights the fact that employers must balance the human rights of employees who cannot be vaccinated, with the collective health and safety rights of their workplace. Some examples of protected grounds are physical and medical disabilities and religion . While the BC Human Rights Tribunal has not yet rendered a decision on the matter, the HRC notes that individuals who choose not to be vaccinated on the basis of personal choice rather than a protected characteristic will not be protected by Human Rights legislation should they challenge mandatory vaccine policies.
The key takeaways from the HRC guidelines are as follows:
- Employers should ensure that any mandatory vaccination policy is evidence-based and proportional to the risk it is seeking to address. This means that vaccine policies should reflect the current evidence on transmission within that specific setting, and be aligned with public health recommendations and current medical evidence. For example, workplaces where close contact is required such as gyms, or high risk workplaces such as hospitals, may be able to implement more stringent policies than an employer whose employees generally work outside and not in close contact with one other.
- Vaccine policies should be no more intrusive than necessary to address the risks of Covid-19 and employers must be prepared to accommodate those who cannot be vaccinated based on protected grounds. Essentially, this means that employers must offer alternatives to vaccination such as mandatory masking policies, work from home policies, or regular covid-testing. Employers have a duty to accommodate employees to the point of undue hardship if their human rights are impacted by employment policies. What constitutes undue hardship will vary in the circumstances.
- Vaccine policies should be flexible to address the varying needs of the employees. In particular, employers should be aware of any issues their employees may have with accessing the vaccines. Access issues may include language barriers, immigration status, or time constraints due to child-care requirements or multiple jobs. Employers should make best efforts to ensure that all employees have access to the vaccine, and should stay alert to issues which may affect marginalized employees in particular.
- Vaccine policies should be in place only for set periods of time and be regularly reviewed. If transmission rates decrease and vaccinations rates continue to rise, employers should consider revising or removing mandatory vaccination policies. Where general transmission risks have dropped, a mandatory vaccination policy may no longer be proportional, evidence-based, or necessary.
- Finally, employers should ensure that employees’ privacy rights are protected. Where employers collect medical information from employees, they must only collect what is necessary and ensure that all information collected is properly protected and held as long as is required by the relevant privacy legislation.
Vaccination policies also raise specific considerations for employers, such as potential risks for constructive dismissals. For example, even where an unvaccinated employee is not protected by human rights legislation, a policy which forces that employee to work from home may give rise to a constructive dismissal in the right circumstances. Employers should ensure that mandatory vaccination policies have reasonable timelines, flexibility, and alternatives available to mitigate against these risks.
While employers can implement mandatory vaccination policies, they should ensure that any employees unable to access the vaccine, or who cannot receive the vaccine on protected grounds, are properly accommodated up to the point of undue hardship. Employers should stay up to date on public health announcements as well as scientific evidence about transmission rates and vaccine uptake. As cases decrease and vaccination rates rise, employers should consider revising their vaccination policies to reflect these changing circumstances.
Overall, when implementing mandatory vaccination policies, employers must ensure that individual human rights and privacy concerns are properly balanced with collective health and safety concerns. As vaccination rates increase, achieving this balance in the workplace may become more straightforward. Regardless, employers should stay informed and maintain awareness of potential human rights concerns and act pre-emptively rather than reactively to address such issues.