Lawyers

Sudbury lawyer says office COVID-19 vaccination insurance policies ‘a good suggestion’

Greater Sudbury Chamber of Commerce hosts workshop on contentious issue

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The Greater Sudbury Chamber of Commerce held a virtual workshop on Thursday to help businesses understand if – and how – to implement COVID-19 vaccination policies.

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“COVID-19: Vaccines and the Workplace” featured a presentation by Zachary Courtemanche, partner at Weaver Simmons LLP, who discussed the legalities of implementing vaccination policies to ensure worker and client safety.

The workshop was hosted in partnership with the Regional Business Centre.

Courtemanche addressed topics relevant to vaccination policies and he said an employer’s decision to mandate COVID-19 vaccination in the workplace requires the careful consideration of a number of factors.

These include the availability of scientific evidence to support the need, the nature of the workplace, the availability of accommodations for those who can’t be vaccinated, and privacy considerations.

“Supporting you in a mandatory vaccination policy is that there is likely a demonstrable need right now. We are in a virtually unprecedented global pandemic,” he said.

“There are government mandates that support and recommend it, and it is supported by some operational need and some health and safety obligations. If you’re in a workplace where you need to protect vulnerable people, you’re going to be in a much more defensible position.”

Employers could run into problems if they fail to address accommodations in their vaccination policies, he added.

“This includes failing to give workers any choice and failing to appropriately protect the privacy rights of employees,” he said.

Courtemanche also spent some time discussing the difference between accommodations and personal beliefs.

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“You may get employees that come to you and say I am exempt from any obligation to get a vaccine. That may be true, and it may be that it’s a personal preference to not get it,” he said.

“Employees with bona fide Human Rights Code reasons for refusal of a vaccine will need to be accommodated. This will likely be for a couple different reasons.”

These reasons could include an allergy to the ingredients in the COVID-19 vaccine or if the vaccine could impact existing medications or underlying conditions.

“The last one is a sincerely held religious belief or what they call creed,” said Courtemanche.

“I will tell you that there is already a human rights case and there is commentary from the Human Rights Commission that says a singular belief against masks or vaccines is very unlikely to qualify as a religious belief or a creed.”

Courtemanche recommends that accommodations be dealt with on a case-by-case basis.

“You have an obligation to provide a reasonable accommodation up to the point of undue hardship,” he said.

“Undue hardship is a significant hurdle, but a reasonable accommodation does give you some flexibility. Depending on the nature of your work, working from home until COVID-19 is under control may be an option.”

Other options include testing and assessment before entering the workplace, mask-wearing, or a separate workstation.

“The million-dollar question we often get is what happens if an employee refuses to get the vaccine? Can we terminate that employee?” said Courtemanche.

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“I will suggest to you that answer is probably no unless you’re prepared to pay severance in accordance with any contract they may have and accordance with your obligations under employment legislation.”

Courtemanche explained it’s “very unlikely” that refusal to get a vaccine is going to result in a termination for just cause.

“That is not to say that you cannot in the absence of any human rights concerns terminate an employee without cause, but again, be prepared to pay severance,” he said.

“Be also mindful that a wrongful dismissal claim against you may attract more than that in the courts in the common law. If you have a particularly long-service employee who is refusing to cooperate, you might really want to think about that because that could be a significant level of exposure.”

During the Q&A period at the end of the workshop, participants asked Courtemanche about a specific situation in which an employee was prevented from working at an external location due to their vaccination status.

The employers said that without being able to work at these external sites, there was limited work available for the employees.

“What are our options? Do we have to keep them working or do we lay them off due to a shortage of work?” asked one employer.

Courtemanche said this is a difficult situation.

“If they are not able to enter the workspace due to someone else’s policy, then you don’t have work for them. It’s obviously an external factor,” he said.

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“If you have other work for them to do and you can repurpose them, that’s great. If you don’t, it might mean that you give them less hours or you put them on some sort of temporary layoff.”

He cautioned that temporary layoffs do sometimes attract constructive dismissal allegations.

“My suggestion is that if you can find work for them, do so, but that’s one of those occasions where it’s not really your fault. It’s coming from an external source,” he said.

Courtemanche cautioned employers who were considering offering some kind of incentive to encourage employees to get vaccinated.

“I’ve heard of employers offering a cash bonus if workers provide proof of vaccination,” he said.

“You don’t want to put yourself in a position where you are (excluding) people who are not vaccinated or unable to get the vaccine.”

Employers should also be mindful about how they collect personal health information and ensure that the collection, use, and destruction of such information complies with human rights and privacy laws.

Courtemanche encouraged local employers to consult Public Health Sudbury and Districts’ COVID-19 Workplace Vaccine Policy Template, which was developed to guide workplaces as they craft their own vaccination policies.

He also said employers should be aware that vaccination policies will need to be amended often, and it is the employer’s responsibility to notify all employees of any changes.

“Having a policy for vaccinations in your workplace is a good idea,” he concluded.

“Be mindful of the vaccine passport rules if that applies to your business or if it applies to places you’re going. Finally, as always, as it pertains to the pandemic, continue to watch for updates because there is inevitably an update. There may have been one while I was speaking.”

The Local Journalism Initiative is made possible through funding from the federal government.

sud.editorial@sunmedia.ca

Twitter: @SudburyStar

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