It is possible to impose consequences on employees who refuse COVID vaccine: lawyer
While any vaccination must be voluntary, it is possible for employers to impose consequences on those who refuse to get the COVID-19 vaccine, according to Kevin MacNeill, partner at Norton Rose Fulbright LLP, who spoke during a virtual conference hosted by the Canadian Corporate Counsel Association last week. Employers may in certain circumstances be able to exclude certain individuals who refuse to get vaccinated, he said.
Speaking as part of a panel session called Back to work does not mean back to normal, MacNeill discussed important considerations for employers in executing a COVID-19 vaccination policy.
“The time is ripe now to start developing and putting in place a vaccination policy for your workplace,” said MacNeill, during the panel session. However, any policy must have a reasonable health and safety basis, MacNeill said. For example, for employees who are working 100 per cent remotely, it may be unreasonable to require vaccinations, in MacNeill’s view. It is also important to ensure that any policy is consistent with workplace agreements – whether they are individual employment contracts or collective agreements, he said.
“To be consistent, you’d also want to make sure it’s consistent with corporate policies that may touch on this issue,” said MacNeill. “There is actually some case law where vaccination policies have been struck down by arbitrators in the past where a collective agreement has indicated that employees are not required to get a vaccine, so it’s important to double check that when you’re developing such a policy.”
If employees object on the basis of religious grounds or a medical condition, the employer must consider accommodation such as a transfer to alternative employment that does not require them to work in close proximity of co-workers or clients, MacNeill said.
Although some provinces still have no legal requirement to give employees paid time off to have the vaccination, it is still a good HR best practice to offer this incentive, MacNeill said.
“Separate from what the law says on this, I think if we’re being good corporate citizens and we agree that vaccination is important as a collective effort, I think the right thing to do is to help your workers have the time off work and to cover the cost of that,” he said.
Employers should carefully monitor employees who have just returned to work after a vaccination to ensure they are safely able to perform their regular tasks such as operating dangerous machinery, MacNeill said. If an employees experiences pain or drowsiness, it may be advisable to let them stay home for the rest of the day or to consider alternative duties until they feel comfortable operating machinery, for example.
MacNeill was joined in the panel by Radha Curpen, partner at Bennett Jones LLP; Justine B. Laurier, partner at BLG LLP; Kristin Taylor, partner at Cassels Brock & Blackwell LLP; and panel moderator, Tim Harty, CEO at Mondaq. Other key points of discussion during the panel included developing a hybrid or remote working policy, and ESG considerations for in-house counsel.
Covering the broad theme of Silver Linings: Turning Adversity into Advantage, the CCCA’s conference was attended by hundreds of in-house counsel from across Canada who participated in a range of interactive learning and networking opportunities. Stephen Poloz, special advisor at Osler, and former governor of the Bank of Canada, was the keynote speaker.