This article is a result of work done by Invest Ottawa in collaboration with MaRS Discovery District. For more information and resources regarding a return to the office and the future of work, visit the Get Back to Work[space], a microsite created in collaboration with Communitech, MaRS and InvestOttawa.
With vaccination rates rising in Canada and companies contemplating a return to the office, we are hearing many common questions from executives and business leaders.
The following document is a collection of information, feedback and advice from advisors, partners and experts curated by Invest Ottawa. None of the below constitutes a formal legal opinion, and you should seek your own legal counsel if you are ever uncertain on the legality of a specific action or decision. Generally speaking, the law is not well developed when it comes to mandatory vaccination policies and whether such a measure will be acceptable or not in workplaces in Canada, and there is still uncertainty regarding what information can or can’t be asked of employees in this respect.
The goal of this FAQ is to provide some guidance on making decisions at this time. Click on each of the headers below for more details.
Q: Can we ask staff if they are vaccinated?
Generally, yes. The collection of this information is justified by its potential impact on the health and safety of your staff. If your staff will be expected to return to a workplace with other team members, or even have the option to, then collecting vaccination status is likely a responsible course to ensure the health and safety of your staff, versus being unaware of your organization’s vaccination rate and relative risk to your staff of returning to an office environment.
In particular, knowledge of employees’ vaccination status can be critical if the employer becomes aware of a potential exposure in the workplace. This information can also aid in making the decisions that follow when asking staff to self-isolate for a period. The vaccination rate of an organization’s entire staff impacts the risk for individual staff members.
If your organization or team is fully remote and isn’t expected to be back at an office or travel for work any time soon, then collecting vaccination status information may be unnecessary.
Q: Can we make a policy of mandatory vaccination for our staff?
First off, you will never be able to force an employee to be vaccinated. However, you may be permitted to draft a policy stating that employees can’t physically work at the office or travel for work without having been vaccinated (while potentially accounting for accommodations).
Given the seriousness and infectious nature of COVID, early legal opinions generally concur that requiring staff to be vaccinated in order to physically return to the office would be acceptable given employers’ obligations under the Occupational Health and Safety Act. The obligation under the act is to take every precaution reasonable in the circumstances to protect the health and safety of workers. Employers are required under health and safety legislation to maintain a safe workplace, but at the same time, this obligation must be balanced against human rights and privacy obligations. So while you may implement a mandatory vaccination policy that addresses a reasonable health concern associated with COVID, to enforce this policy, you may have to make exceptions for employees who are unable to comply with the vaccination requirement due to human rights legislation (typically a disability or religious belief).
A mandatory vaccination policy may be allowed in workplaces if the company can demonstrate a direct connection between the vaccination policy and reducing the risk of COVID at work. This becomes specific to the company, because what is acceptable for one office may not be for another. For instance, if your team of staff is completely remote, this is an obvious case in which a mandatory vaccination policy would not be justified, in contrast to a company whose staff must be onsite in the physical workplace in relative proximity to each other to do their job.
As such, making vaccinations mandatory is reasonable for those who work onsite or in proximity to other staff members, and reasonable accommodations should be considered (where possible) for all staff who aren’t vaccinated.
If your organization chooses to move forward with a mandatory vaccination policy, it is recommended to make this a written policy that provides the rationale for the vaccination requirement along with details on the information that will be collected and kept private, as well as how employees who are unable to comply may be accommodated.
Q: What is the best practice to ask and collect vaccination status information?
First, organizations must recognize that asking an employee whether they have been vaccinated and requesting proof constitutes a collection of personal information and triggers privacy considerations, so if you choose to implement a policy, put it in writing and consider the following as part of the policy:
What you are going to ask for and why
When you are going to ask for the information and to whom it must be provided and how
Whether proof will be required (for example, vaccination certificates)
Where and how the employer will store vaccination status information and records and for how long
What actions will be taken depending on an employee’s vaccination status and in what cases accommodations will or will not be made
Who will have access to the information collected and what will be done with it
Your organization should also provide a rationale for collecting the information (for example, to protect employees), perhaps noting that staff vaccination rates may inform policy about such measures as masking (not just for unvaccinated individuals, but all staff equally).
A few other considerations when drafting policy:
For staff who do not wish to get vaccinated and are not protected by the code (for reasons that are related to neither health nor religion), the expectation should be that they can continue working from home so long as they can reasonably perform their job from there.
If clients or customers will enter the employer’s premises, employers need to be careful if they require staff to be vaccinated but not others who may enter the premises. Staff may not consider this to be fair, depending on how often and for how long non-employees visit the workplace and what precautions are taken when they do.
Similarly, does your policy address cases where those who aren’t vaccinated agree to wear masks and use other PPE while keeping a two-metre distance? Will you allow them in the workplace even if these precautions aren’t required of vaccinated staff? Employers don’t have to allow this but may consider it.
Given the changing nature of the law, employers should retain the right to modify the policy and simply update staff on any changes.
Q: Can I ask current staff for proof of vaccination?
Employers can request proof of vaccination if there is a legitimate connection between the need for this information and maintaining the health and safety of employees, so factors such as the nature of the workplace and the industry are important here. Companies must also keep in mind that this is an employee’s private, personal information and treat it as such. The records should be accessible only to those who need to know the status for the purpose the information was collected.
Q: What if staff don’t respond to this inquiry?
If you ask staff their vaccination status and they choose not to reply or verify their status, the safest route is to simply treat them as not having provided proof of vaccination, so basically the same as those who confirm that they are not vaccinated.
Q: What permissions should we get when requesting vaccination status and records?
Everything should be consent based. You should collect as little personal information as necessary to achieve your public health goals.
Q: If I receive vaccination information, how do I store it?
Vaccination status is an employee’s personal information and must be treated as confidential. This information must be collected, stored, used and disclosed in line with privacy legislation. As a general rule, employers should treat all personal information as confidential.
Q: What are some examples of vaccination policies?
Mandatory: No one can show up to an office, conduct business travel or meet with colleagues without being fully vaccinated. Period. Companies going this route include Shopify, Absolute Software, Twitter and the list grows each day. All of Canada’s major banks have announced mandatory vaccine mandates with October deadlines.
Mandatory, but…: This is the same as the above, but you allow unvaccinated staff to either wear a mask while at the office or show a negative PCR test in the last seven days. Ceridian is one example of a firm implementing this policy.
Mandatory for travel: Only putting this condition for staff travelling outside of Canada (for work, or otherwise). CAE is an example of a firm implementing this policy.
Q: Which staff should have access to this information?
For organizations lacking an occupational health team, this would likely be the human resources department, which requires the information to perform their duties and comply with any policies. HR professionals are accustomed to handling personal information of this nature. An executive team member could be given access to the information, as well, as a matter of oversight. Only co-workers who need the information in order to fulfill the requirements of the COVID-19 vaccination policy should have access to it.
In the case of visitors to your facility, a designated person or team responsible for enforcing the workplace policy would also have access to this information. Policies should state that those who are granted access to vaccination status information must maintain its confidentiality.
Q: When aware of staff who have not been vaccinated and whose work requires their presence in the office, can we ask them to sign a waiver protecting the company from liability in case others get sick?
This is a tricky one. A waiver doesn’t remove the statutory obligations of an employer to keep its employees safe, so it is unlikely to protect your company legally if you have knowingly exposed your employees to a health risk.
Q: Can I ask a job applicant if they’ve been vaccinated?
The answer is likely yes. Employers have broad latitude in making hiring decisions, keeping in mind the obligation to make a decision consistent with human rights legislation. An applicant may choose not to answer whether they are vaccinated, which could lead to the employer not hiring them. That said, given the risk of potentially missing out on otherwise strong applicants in a tough labour market, companies should carefully consider whether inquiring about vaccination status is necessary at the hiring stage. Unless a vaccination is needed in order to allow an employee to effectively carry out their job duties, vaccination information may not be relevant or necessary.
Where vaccination information does impact how the candidate would do their job, in order to mitigate the risk of a human rights complaint, employers should explain to applicants that employees who are unable or unwilling to be vaccinated due to a protected ground can be accommodated. Ideally, this would be explained in the job posting.
Q: Can I offer employees an incentive to get vaccinated?
This is becoming a common question, especially with certain U.S. states’ adoption of this practice (lotteries, prizes, small incentives such as doughnuts and so on). The risk with any type of incentive program is if it disproportionately benefits or disadvantages employees based on a protected ground under human rights legislation. Accordingly, if an employer chooses to go this route, they would be wise to allow employees who are unable or unwilling to be vaccinated due to a protected ground to receive the same benefit from the incentive program, or to ensure the benefit is not material enough to trigger a complaint (for example, in the case of offering a doughnut).
Q: Can I ask vaccinated staff to stop wearing masks or distancing?
No. Employers must continue to comply with applicable provincial and federal health orders, regardless of whether their workforce is vaccinated or not. Stay up to date on Ontario’s reopening plan, which is slowly loosening distancing and mask-wearing restrictions. If masks aren’t required, best practice is still to allow staff to voluntarily wear a mask if they choose to as an additional health precaution for their specific personal or health situation.
Q: Can we ask employees for permission to share their vaccination status with co-workers? And do we have an obligation to inform other staff who are working with them if they are not vaccinated?
It is not recommended to share vaccination status with other staff members. The rationale of protecting the employee doesn’t support why you would need to disclose the information to co-workers. Your policy should ideally explain that rationale and clarify how this protects people’s health, as opposed to simply satisfying curiosity or offering other employees peace of mind. The whole idea of the policy is to have the information you need to protect staff from the above scenario, so be sure to follow through on the policy once you’ve collected the information.
Q: In the case of staff who refuse to get vaccinated and are unable to be accommodated or perform their job without being at the office and in proximity to other employees, can they be terminated without cause?
The answer to this is likely yes, if there is no way to accommodate this person, particularly if their reason for not being vaccinated is unrelated to a human rights issue (religious or health). That said, you will absolutely require legal counsel if you find yourself in this situation. We are in uncharted legal territory with COVID, so there is a lack of certainty in case law specific to this.
And even if you are in a strong legal position, a successful defense of your organization’s decision against
a legal challenge must be weighed against the expense and negative energy generated by any legal action that may ensue. A chat with one of our HR advisors may be helpful here.
Q: If an employee’s job requires them to travel and they are not comfortable doing so, what options do we have?
This depends on whether their discomfort is related to a ground protected under human rights legislation. If so, then the employer must accommodate them to the point of undue hardship.
If the employee is not protected by the human rights code and simply is not comfortable travelling, it may be possible to terminate them without cause, although again, we highly recommend seeking legal advice from an employment lawyer before doing so. The other option is to offer them an alternative role and give their existing role to someone else.
Employers would also need to consider their policy for staff who travel and under what circumstances they are allowed to visit the office when they return. Even for vaccinated employees, there may be a work-from-home period necessary following travel, given the added risk it represents to have that staff member back in the office immediately upon their return.
Q: How should we store vaccination records?
The records should be stored securely and accessible only to those detailed in the policy. Hard-copy documents could be kept in a locked cabinet to which only appropriate people have a key. Digital solutions should be secured and accessible only to the people responsible for the health and safety of staff. A secure dashboard of the organization is ideal and could contain such information as employees’ vaccine schedules, so you can advise on boosters and gauge risks going forward. This is a resource that can be put together and refined over time.
Q: How can we use the vaccination status information of our organization and employees?
Best practice would be to advise individuals who are partially vaccinated or unvaccinated to work from home in the event cases are associated with the workplace. This is currently standard practice.
Additionally, based on knowing what the vaccination rate is in your workplace, you may choose to keep a mask policy in place or continue to mandate socially distanced interactions and limit the number of employees in the building at a given time, among other risk-mitigation measures.
Q: Can we ask attendees of events for status and proof of vaccination?
For a private establishment, the answer is likely yes, but you may choose to seek legal advice on this. You should also consider the requirement of proof if you are promoting your event as vaccinated-only so you can have confidence that attendees were, in fact, fully vaccinated and you have made best efforts to be true to your claim.
While an employee may be unlikely to falsify their vaccination status, given the consequences of lying to or misleading their employer, an event attendee may be less concerned with this risk and simply claim to be vaccinated so they can attend the event. As such, considerations should be made as to the type of proof required for events.
As Ontario considers generating verifiable proof of vaccination, it may become more difficult to falsify vaccination status and, therefore, make it easier to enforce vaccinated-only event policies.
Q: Are there tools available to collect vaccination records?
Having employees self-report with a digital copy of their own personal record is best practice. Tools like CANImmunize@Work have features to verify and connect to appropriate databases. This app is available now and used widely by individuals. But other short-term, improvised solutions may do the trick. For example, an online survey could be completed (using a service such as Survey Monkey) and sent along with the details on your organization’s policy. Be sure that those administering the tool and collecting the information are limited to the team responsible for the program overall.
How to develop your COVID-19 safety plan: A guide for Ontario workplaces
As an employer, it is your responsibility under the Occupational Health and Safety Act to take every precaution reasonable in the circumstances to protect a worker. This guide will help you use current public health and workplace health and safety information to develop a plan and put controls into place to help make the workplace safer for everyone.