Across Canada, government mandates regarding masking and vaccination are lifting. In Ontario, vaccine passports are no longer required as of March 1 and masking mandates were lifted as of March 21. Employers who previously rolled out vaccination policies may be wondering what these wider government changes mean for their workplace policies.
Is A Vaccination Policy Necessary?
The shift in governmental approach towards COVID-19 safety protocols will likely mean that employers looking to justify invasions of employee privacy – i.e. disclosing vaccination status – based on reasonable health and safety concerns will be less able to do so. This is because the consensus, as evidenced by the change in government mandates, is that maybe this need is not based on a legitimate health and safety concern. This may vary depending on the workplace, but we note that even the employee vaccination mandate for long-term care homes – which was legally required – has been lifted.
There is no law stating that an employer cannot have a vaccination mandate or a mandatory masking policy, but courts may be less likely to uphold these as government mandates disappear.
What Will Employees Think?
We expect that employers will face challenges from employees on both sides of the political divide on these COVID-19 safety issues. This is especially likely in workplaces where work has been mostly remote or totally remote during the past two years.
Many employees may feel anxious about coming back to the office in person and this may be particularly so if the employer does not have a policy requiring that employees be vaccinated or masked. On the other hand, employees who are less concerned about COVID-19 may feel irritated that they have to wear a mask at work when they don’t have to at the grocery store and they may resist the invasion into their privacy that a vaccination policy entails. Gaining compliance among this group of employees could be an issue.
How will employers strike a happy medium? Here are some things to keep in mind:
- The employer’s duty under the Occupational Health and Safety Act is to take every precaution reasonable in the circumstances for worker safety – what’s reasonable will vary!
- Be mindful of the need to balance workplace safety and invasions of employee privacy. While Ontario does not have any specific legislation related to employee private information, common law privacy principles dictate that any invasion be reasonably justified, for a clear purpose etc.
- Expect accommodation requests and know how to approach them – this will likely be especially true for employers requiring employees to come back to the office after a long period of working remotely. Requests for accommodation that are legitimately related to human rights issues must be accommodated up to the point of undue hardship.
If you need assistance navigating these tricky workplace issues, get in touch for a consultation!