Mandatory-ish: Vaccination Policies Are Not All Created Equal
Over the last few weeks, many large Canadian employers have announced that they are implementing “mandatory vaccination policies”.
But as you dig into the details of those policies, you will find that the term “mandatory” has been used liberally. Beyond human rights-related vaccination exemptions, there are variations in these policies that permit unvaccinated employees to continue employment, and even to attend the workplace.
So – are these policies really mandatory?
As employers begin to plan for the fall and develop their own policies[i], they should consider the nuances in the terms, actual and potential government directives, and what approaches best suit their workplaces.
The Spectrum of Mandatory-ish Vaccination Policies
Below is a summary of the kinda sorta mandatory vaccination policies announced over the last few weeks[ii]:
Will the Government Require Vaccinations in the Workplace?
The federal government has announced that it will require federal public servants to be vaccinated, and that it “expects employers in federally regulated industries and Crown corporations to do the same.” But the federal government does not have jurisdiction over provincially-regulated employees, who make up the bulk of Ontario’s working population.
Premier Ford has not signaled an intention to make vaccinations mandatory in workplaces, although Ontario public servants will be subject to a “vaccination-or-testing” policy. Given that less-than-mandatory directive for government employees, Ontario employers should not expect a true “mandatory vaccination” regulation for the private sector.
PH Tips
Our views on mandatory-ish vaccination policies are evolving, but our current best guidance is:
A literally “mandatory” policy is a problem: Even the most stringent policies still have exemptions for human rights-related grounds. Calling it a “mandatory” vaccination policy is misleading and problematic.
The tide is turning: Much of the hesitancy about enacting mandatory-ish vaccination policies in the last few months was because employers did not want to be a test case, dealing with bad PR or employee morale issues. Recent policy announcements by banks, governments, municipalities, and other large employers have paved the way for smaller businesses to enact (reasonable) policies as part of a growing trend.
Fully vaccinated workplaces don’t look any different…yet: Vaccination is not a replacement for overall health and safety practices. Under current restrictions, masking and physical distancing are still required regardless of the rate of vaccination in a workplace. Arguably, there may be changes to capacity limits and masking requirements in the future depending on the rate of vaccination in a workplace (as it is in certain US states).
Gather the data first: Conducting anonymous surveys to determine how many employees are currently unvaccinated and whether they intend to get vaccinated before a return to the office is a prudent first step before developing a policy. If, for example, 95% of your employees are already vaccinated, and the rest intend to do so before your November return date, is it necessary/helpful to enact a policy?
Prioritizing health and safety over employee pushback: There will be employees who choose not to be vaccinated or who do not wish to share their status. They may challenge a mandatory-ish vaccination policy. The health and safety of the workplace likely trumps their personal wishes and desire for privacy, so long as they receive adequate notice of the effective date of the policy and exemptions are made available, if necessary.
Assess the alternatives: Rapid antigen screening[i] is an alternative[ii] to mandatory vaccination requirements, and may need to be part of a return-to-office strategy because of vaccine-exempt employees. Testing can also be made available to vaccinated employees as part of an overall safety protocol.
In the coming months, our guidance on this topic will continue to evolve, but it is clear that most employers will have some type of vaccination policy by the end of the year. Until then, employers should develop the right type of “mandatory-ish” vaccination policies for their workplaces.
[i] Many municipalities offer testing programs, but Creative Destruction Lab is also offering screening through a cross-Canada consortium.
[ii] Some health care practitioners state that screening/testing is not a valid alternative to vaccine mandates.
_______________________________________________
[i] The Medical Officer of Health in the City of Toronto is now “strongly recommending local employers institute a workplace vaccination policy.”
[ii] This list is up to date as of August 25, 2021 and is based on media reports of policy details. Given the speed with which these large employers are enacting and amending their policies, there may be updates after the time that this blog is published.
