Blog

* This article is intended for private New Brunswick employers who are provincially regulated and non-unionized. Federally-regulated employers, employers with unionized workforces, and public employers may have different considerations than the ones outlined in this article.

The fourth wave of COVID-19 appears to be in full force, with New Brunswick’s new vaccine passport program now in effect. As COVID-19 infection and hospitalization rates rise, several governments and large companies have announced that they are implementing mandatory vaccination programs for their employees.

Many employers are now asking themselves: Should we require our employees to be vaccinated? The question employment lawyers are getting is: “Can we?”

It’s an important question to ask. Aside from the legal issues flagged below, employees are looking to their employers to show leadership on the issue of COVID-19 safety. Any decision an employer makes (or doesn’t make) with respect to COVID-19 may impact an employee’s view of their employer and overall employee retention.

Any vaccination policy needs to be carefully tailored to an employer’s particular workplace. To achieve this, employers can start by asking themselves the following five questions.

1. What are the current risk factors in our workplace?

Businesses will have different levels of risk and different types of risk depending on their industry, workspace, and current policies. For example, the risks in a workplace where most employees are working from home will be different and perhaps lower than in a workplace where everyone is “in the office” and working in close proximity to other people.

Employers should assess and clearly identify their COVID-19 risks. This will involve asking questions like:

• How much of our workforce is remote versus in the office?
• Does our current workplace allow for social distancing?
• What portion of our work could be done virtually to limit in-person contact?
• Are our employees required to be in close proximity with each other or with customers?
• Are we working with vulnerable populations?

In thinking through their risk factors, employers may determine that certain parts of their workforce are at a higher risk than others. It may also be that different measures are justified or needed for different parts of the organization's business.

Clearly identifying specific safety risks will help employers develop a vaccination policy that is more tailored to their workplace, more likely to be considered reasonable if challenged by an employee and, most importantly, more effective in ensuring employee safety.

2. What measures are we legally required to take?

It helps to start with the minimum requirements.

It should go without saying that employers should comply with any public health mandates or government regulations. In addition, New Brunswick employers have an obligation under the Occupational Health and Safety Act to take “every reasonable precaution” to keep employees safe at work. This includes keeping them safe from COVID-19.

It follows that developing a vaccination policy is not just about organizational preference – employers must think about how to tailor their COVID-19 policies to meet their obligations under the Occupational Health and Safety Act. This goes beyond choosing whether to mandate vaccination and requires that employers consider what other reasonable precautions may be needed in order to keep employees safe from COVID-19.

While following government guidance is a good start, it may not necessarily be enough to meet the statutory requirement of “every reasonable precaution”. In some cases, vaccination itself may not be enough either. For example, it may be that masking while in close contact with others is also a reasonable precaution to keep employees safe.

Focusing on specific legal obligations can help guide a conversation about a vaccination policy because it sets an objective measuring stick for everyone to consider.

3. How will we meet our obligations under the Human Rights Act?

A mandatory vaccination policy will likely be discriminatory on its face because there will be employees who, for health or other reasons, cannot get vaccinated. The real question will be about justifying the policy as a bona fide occupational requirement and ensuring that adequate accommodations are available for those who are entitled to an accommodation under human rights legislation.

Employers should therefore ask themselves:

• What will we do when employees who are medically unable to get vaccinated or who have been advised by a health provider not to be vaccinated seek an exemption from our vaccination policy?
• Who will deal with accommodation requests?
• What accommodations will we be able to offer employees?
• How will we assess accommodation requests and what process will we follow?

Failure to provide accommodation options and communicate the availability of an accommodation process could lead to human rights complaints against an employer.

4. What is Our Privacy Plan?

Once employers collect medical information from an employee, whether it be proof of vaccination, information about vaccination status, or medical information relating to a request for an accommodation, that information should be treated confidentially.

Privacy laws can be strict. Employers should familiarize themselves with their privacy obligations and have a robust plan in place for the collection of sensitive health information.

When thinking about privacy, employers should ask themselves:

• Who will have access to medical information?
• How, where, and for how long will this information be stored?
• How will we restrict access to this information?
• What measures will be taken to ensure those with access understand the importance of maintaining strict confidentiality?

Employers should also consider how information about the privacy plan will be communicated to employees to reassure them that their health information will be safeguarded appropriately.

5. What Alternatives Do We Have to Mandatory Vaccination?

In deciding whether to adopt a mandatory vaccination policy, the decision employers need to make is not an either-or decision between mandatory vaccination or the status quo. Employers should consider what other measures are available to mitigate the specific risks they have identified in Question (1) while balancing their obligations under Questions (2), (3), and (4). It is likely that a combination of safety measures will be most effective.

It may be helpful to start by considering whether a mandatory vaccination policy is needed or whether a “voluntary” vaccination policy with alternative requirements for those who do not provide proof of vaccination will suffice.

A truly mandatory vaccination policy is one where vaccination is not optional and discipline for failure to vaccinate may follow. "Voluntary" vaccination policies are policies that ultimately give employees a choice between vaccination and alternative safety measures. The alternative measures might include rapid testing and masking, for example. Similarly, a voluntary vaccination policy may implement other COVID-19 safety measures as the default rule but allow employees to be exempt from certain measures if they provide proof of vaccination.

In some circumstances, measures other than vaccination may still be effective at keeping employees safe without the legal implications of a vaccination policy. These should be considered as well. A primary example of this may be for remote workers or employees who are working from home. At the same time, employers of remote workers may still need to set some rules establishing what is required of workers who will be attending at the office, meeting with clients, or visiting a job site.

Taking time to consider all the possible options rather than falling into the trap of mandatory vaccination “tunnel vision” will help employers avoid implementing a policy that is not well-tailored to meet their various legal obligations.

Conclusion

As much as employers may want to take every possible step to protect their employees, they need to ensure that they do so reasonably and in a way that complies with other legal requirements.

Employers who are overzealous in the name of safety may run into problems when it comes to their human rights and privacy obligations.

Employers who think about their vaccination policies carefully rather than jumping into a policy based on what they see other organizations doing or pressure they are receiving to make a certain decision will be better positioned to answer difficult questions from frustrated or nervous employees. Furthermore, employers who can show leadership on the issue of COVID-19 safety may find themselves with a workforce that is more motivated, committed, and mentally healthy than if employers fail to take appropriate steps to protect and support their workforce through the pandemic.

There is no doubt that COVID-19 continues to challenge us all, and employers will need to continue to adapt to changing circumstances and changing legal obligations.

If you need help developing a vaccination policy for your workplace, please contact any member of our Labour and Employment Group.

Note: This article contains information, questions, and considerations for discussion and reflection purposes only. Nothing in this article should be construed as legal advice. Any examples provided in this article are hypothetical and simplified examples that should not be interpreted as being an enforceable policy for any given workplace. You should obtain individualized legal advice before implementing any new workplace policy.