Opposition to mandatory vaccination policy grows as new policies roll out

Public health directives, rising case counts see move to mandatory vaccine policies in workplaces

Opposition to mandatory vaccination policy grows as new policies roll out
James Fu of BLG; Janine Liberatore of Hunter Liberatore LLP; Wayne MacKay of Dalhousie University Law.

In late August a Toronto police officer sent a letter to the city’s chief of police saying she would not disclose her vaccination status to the Toronto Police Service (TPS) because her medical health is protected by privacy laws.

The TPS had recently implemented a mandatory COVID-19 vaccination requirement for all its members, with a requirement to disclose and provide proof of their vaccination status by Sept. 13.

Det. Const. Adrienne Gilvesy complained that, in February, the TPS told its members that they would have “the right to choose,” as in “all medical decisions,” but now that right was being denied.

Gilvesy is being represented by Toronto constitutional lawyer Rocco Galati, who in April also filed a claim against the Ontario government on behalf of Gilvesy and several other Ontario police officers over enforcement of COVID measures.

And her complaint illustrates how quickly mandatory vaccination policies in the workplace are being developed and implemented -- and the pushback to them.

“If we were speaking eight weeks ago, it might have been a different answer about what we’re seeing,” says James Fu, a labour and employment law partner with Borden Ladner Gervais LLP in Toronto. “But I’d say the trend is that more employers are adopting mandatory vaccination policies.”

That’s partly in response to public health directives, starting with those for institutions working with vulnerable populations in high-risk settings. For example, on August 17 Ontario issued Directive #6 for public hospitals, home care and community service providers, Local Health Integration Networks, and ambulance services. Effective Sept. 7, the mandatory vaccination policy required proof of vaccination, or written proof of medical exemption, or proof of completing an educational session about the benefits of COVID-19 vaccination prior to declining vaccination for any reason other than a medical reason. The directive then went on to say was that an organization could remove the educational option and rely only on the first two proofs.

But as the COVID-19 pandemic has dragged on -- with the more transmissible and infectious Delta variant emerging and case counts on the increase – new, more stringent directives are being issued and employers are beginning to implement mandatory vaccination policies in their workplaces.

“To say that we’re seeing a lot of movement is an understatement; lots is happening,” says Janine Liberatore, a partner in employment law firm Hunter Liberatore Law LLP in Toronto.

After Ontario issued its Directive #6, she says, “we saw an interesting trend”; municipalities and other organizations “started to disclose they were getting ready to implement vaccination policies that closely mirrored requirements set out in the directive.”

On Aug. 20 the Toronto medical officer of health issued a statement strongly recommending that “local employers institute a workplace vaccination policy to protect their employees and the public from COVID-19.” The recommended requirements were the same as those Directive #6, though it didn’t suggest that employers might remove the third, educational option. It also recommended other protocols such as physical distancing and wearing “personal protective equipment.”

Four days later, Ontario released O. Reg. 577/21, which required Ontario employers to comply with any advice, recommendations or instructions by chief medical officer of health regarding COVID-19 policy.

Over a period of one week the Royal Bank of Canada and other banks, Maple Leaf Sports & Entertainment (which owns and operates several major sports venues in Toronto), the City of Toronto, Toronto Police Services and the Toronto Transit Commission (TTC) had all issued their own policies, says Liberatore.

“All employers are encouraged to have a vaccination policy,” she adds; “it’s a question of the options they provide to employees, and the sanctions for not meeting those obligations.”

Unionized and non-unionized work environments, and the public sector

Some labour unions, notably in the health-care sector, have asked for priority access to vaccines for their members, but there has been resistance to mandatory vaccine policies. For example, the Amalgamated Transit Union Local 113, representing 12,000 public transit workers in Toronto asked for priority access earlier this year but has reportedly called the mandates “unfair and unjust intrusions into the lives of our members.” (All TTC workers are now required to be fully vaccinated by Oct. 30.)

Likewise, the Toronto Police Association – which represents Gilvesy -- has opposed the TPS’s requirement that its members be vaccinated.

Some of the hospital unions have supported the vaccine mandates, but don’t want their members terminated for refusing to comply, says Liberatore.

The argument for a vaccine mandate is stronger for workers “who have regular access to members of the public to a much greater degree than employees who work in an office building,” she says. These include police officers, public transit bus drivers and fare collectors, as well as municipal workers in public libraries and community centres.

“The purpose [of the policies] is to protect employees, and also the members of the public they regularly interact with.”

Labour unions have collective agreements that may preclude mandatory vaccinations, she adds, such as one nurses’ collective agreement that was arbitrated on that basis. However, arbitrators have upheld policies in several cases related to COVID-19, she says, such as the requirement to self-isolate, or comply with other COVID protocols, or to test for COVID-19 every two weeks.

In the Caressant Care Nursing & Retirement Home case against its labour union, Christian Labour Association of Canada, in 2020, the union grievance against mandatory testing was dismissed, she notes. When the intrusiveness of the antigen test (a swab up the nose) was weighed against the protection of residents, the nursing home’s policy was found to be a reasonable one.

However, “it’s different when you have to actually have an injection,” though, and those cases haven’t gone to arbitration or litigation yet.

In part because of labour unions’ collective agreements, it is much easier to implement a mandatory vaccine policy in non-unionized workplaces, says Wayne MacKay, a professor emeritus at Dalhousie University’s law school in Halifax.

In August the federal government announced it would require vaccination of the federal workforce and the federally regulated transportation sector, and expected that “Crown corporations and other employers in the federally regulated sector will also require vaccination for their employees.”

Various provinces are also considering mandatory vaccination policies, and they have been implemented in the education sector, both in schools and post-secondary institutions.

In the public sector context, “if someone establishes an intrusion on their rights, then the burden does shift to the government in to demonstrably justify that it’s reasonable,” MacKay says.  “Vaccination is the most intrusive of these [disease prevention] options,” he adds.

“I think the burden really is on the government, in those sectors where they do impose mandatory vaccination, to prove that that is a necessary way to pursue the objective -- or is it possible to do it in other ways, with distancing and masking and so on?”

Accommodations, and what’s reasonable

Both public- and private-sector employers are required to accommodate anyone who cannot get the vaccine for medical reasons, as well as on the grounds of freedom of religion or of conscience, says MacKay. While medical reasons are clear-cut, they are less so for in the second category, requiring claimants “to prove that vaccinations in some way are prohibited or looked down on by their religion.” The test would also be high for a freedom of conscience, he says.

But other accommodations might reasonably be made for employees who refuse vaccinations, he says.

For employees who are able to and do work from home “and have no contact with the public, there’s not much of a legitimate argument for vaccination,” he says. “Those are the kinds of things workplaces can consider, even with a mandatory vaccination policy.”

For employees who must do their job in the employer’s workplace, i.e., where it is not possible to perform the work from home, they could be assigned within their workplace in a way that accounts for not being vaccinated, he says; for example, a front-of-store employee might be moved to the back of the store.

“Firing is very severe, and it’s more likely an employer would try to do something else first,” he says, adding that he expects arbitrators might also look at working alternatives in making their decisions, including for situations where an employee is not hired if they cannot provide proof of vaccination.

In any event, a refusal to provide proof of vaccination will be taken as an assumption an employee has not been vaccinated, says Liberatore, and sanctions may include an unpaid leave of absence.

The path forward

Employers should consider whether to require mandatory vaccination for lower-risk settings, although even in those settings the risk may increase if employees are interacting with each other in an office, says Fu.

Masking, social distancing, sanitation, HEPA filters and good air quality are all factored into COVID-19 safety plans, says Fu, within “the hierarchy of controls for safety.

“Vaccinations won’t get us out of the pandemic in the short term,” he adds, adding that other methods such as distancing and masking should be considered by employers “because they’re tried and tested avenues of mitigating spread.”

And, the relatively short protection window of COVID-19 vaccines and according recommendations now for third “booster” shots will also be a consideration.

“If there’s vaccine hesitancy now, extrapolate that to six or eight months later,” says Fu, when employees don’t want to get new boosters.

“Employers should look at that now, and lay out the expectation clearly to their workforces if they are planning to implement” a mandated booster policy, either in writing or at least in discussion with employees, he says.

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