Although vaccination rates in Canada are higher than many other nations, there are still those that are hesitant, unwilling or unable to take the shot.
This creates a difficult situation for employers. Under workplace safety legislation in all provinces, employers have a duty to provide a safe working environment which protects employees from work-related illness or injury. However, this duty does have reasonable limitations and must be within the boundaries of the employment standards act.
Provincial regulations and laws differ, but the following apply across Canada for the majority of private employers:
What Employers Can’t Do*:
- Require that an employee provide proof of vaccination as a condition of employment
- Terminate employees on a “with cause” basis for not receiving the vaccination
- Provide ongoing compensation or “Wellness Credits” for those that are vaccinated
- Place unvaccinated employees on unpaid leave
- Financially penalize unvaccinated employees
What Employers Can Do:
- Provide one time incentives to employees who are or become vaccinated
- For those with medical or religious reasons for declining, we recommend including them in the incentive
- Restrict access to the workplace while accommodating work from home
- Allow paid time off for vaccination appointments
- Require Rapid Testing for anyone who does not provide proof of vaccination (Employer Must Pay For Testing)
- Request documentation for Medical or Religious exemption from vaccination
What Employers May Be Able to Do:
- Choose to terminate employment for anyone refusing a vaccine
- Considered a termination without cause and all applicable severance must be paid
- This could potentially lead to the employee being owed additional human rights damages if they had a valid Medical or Religious reason for refusing vaccination
*The Federal government as well as most provinces have instituted vaccine mandates for some industries. For businesses operating in these industries, the employer may be able to require proof of vaccination or terminate with cause if the employee refuses to become vaccinated. Currently, these industries include:
- Federally Regulated Transportation
- Healthcare Workers (may vary by province)
- Long-Term Care Workers (may vary by province)
- Educational Workers (may vary by province)
While providing Wellness Credits is very popular in the US, there are several reasons why this system is not generally used in Canada. In short, offering an ongoing incentive to one group of employees is often seen as discriminating against another. In some cases, these credits can also impact an employee’s access to benefits.
If employees are unionized, we recommend discussing workplace policies and prevention with these parties to ensure compliance and share the responsibility of communication and implementation.
We strongly recommend consulting legal council before implementing COVID prevention measures that may impact employment.
COVID will continue to be a Health & Safety concern for businesses. Encouraging vaccination and implementing or continuing distancing and other policies is a great way to ensure that you are meeting your obligations as an employer.
Helpful Resources and News: Coronavirus Outbreak Archives – Samfiru Tumarkin LLP (stlawyers.ca)
Ontario Occupational Health and Safety Act: Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (ontario.ca)
Ontario Employment Standards Act: Employment Standards | Ministry of Labour, Training and Skills Development (gov.on.ca)