Although the world has largely adapted to the new normal of the COVID-19 pandemic, the COVID-19 virus and its variants continue to create uncertainties for employers.
In February of 2022, the Government of Saskatchewan repealed The Public Employers’ COVID-19 Emergency Regulations and The Employers’ COVID-19 Emergency Regulations, which authorized private employers and required public employers to implement vaccination or testing policies, thus returning the onus to employers to determine whether they can reasonably and lawfully implement a vaccination policy in the workplace.
Without these regulations or a public health order in place, an employer’s authority to implement a vaccination policy can still be supported by an employer’s health and safety obligations under The Saskatchewan Employment Act where risks of COVID-19 exposure, transmission, and adverse impacts are identified.
Part III of The Saskatchewan Employment Act places a legal obligation on employers to ensure the health, safety, and welfare of their employees insofar as is reasonably practicable. Accordingly, an employer retains the right to implement a vaccination policy where it is a reasonably practicable measure to ensure the health and safety of workers, provided that the policy is structured in a manner which respects employees’ individual rights.
Additionally, employers are required to develop and implement an exposure control plan to reduce or eliminate worker exposure to infectious materials or organisms under The Occupational Health and Safety Regulations, 2020. The regulations list vaccination as an “infection control measure” which could be used in an exposure control plan. This section provides some additional support for an employer’s ability to use vaccinations as a reasonable method of exposure control in the workplace.
In determining whether to implement a vaccination policy, employers should carefully assess the workplace and any risks presented to workers either in the nature and design of the workplace, or with respect to any particular vulnerabilities of individual employees. Factors to consider may include the risk of exposure, whether any employees have pre-existing conditions, the nature and risk of the COVID-19 variants which are spreading, and whether personal protective equipment is sufficient to protect workers. If there are no health or safety concerns that a vaccination policy would eliminate or reduce, a vaccination policy may not be supportable at law.
Unionization can also impact an employer’s ability to implement a vaccine policy. Any policy that is introduced by the employer will need to be agreed to by the union or, if implemented unilaterally, comply with the KVP criteria set out in Lumber & Sawmill Workers’ Union, Local 2537 v KVP Co. Ltd., [1965] OLAA No 2, 16 LAC 73:
- The policy must not be inconsistent with the collective agreement;
- It must not be unreasonable;
- It must be clear and unequivocal;
- It must be brought to the attention of the employee affected before the employer can act on it;
- The employee concerned must have been notified that a breach of the rule could result in his discharge (if the rule is used as a basis for discharge); and
- The policy should have been consistently enforced by the employer from the time it was introduced.
A new body of arbitral decisions now considers vaccination policies specific to COVID-19. These decisions confirm the contextual assessment required of employers in determining whether a vaccination policy is reasonable. For example, these cases commonly considered:
- the circumstances of the pandemic at the time the policy was introduced and at the time it was challenged;
- how the pandemic has impacted the workplace;
- the effectiveness of other measures the workplace has implemented to reduce the risk of transmission;
- whether the employer had to implement a vaccination policy to comply with a government order/requirement;
- whether the vaccination policy was implemented to fulfill the employer’s obligations under occupational health and safety legislation to take steps to protect the health and safety of workers in its employ; and
- the nature of the workplace, including factors such as whether the employees can work remotely/isolated/outside and whether the employees are routinely dealing with vulnerable populations.
Vaccination policies can also be challenged by employees in a non-unionized workplace. Employees may claim that a policy amounts to a significant change to the terms and conditions of their employment contract giving rise to constructive dismissal. Accordingly, the above-listed factors are also relevant considerations when determining whether to implement, update or maintain a vaccination policy in a non-unionized workplace.
Health and safety is not the only consideration that an employer must be aware of when implementing a vaccine policy. Employee privacy is also a key issue. As vaccinations are a medical treatment, whether someone is vaccinated is considered personal health information. It is reasonable for a person to expect that their decision on whether to get vaccinated remains private. The Office of the Privacy Commissioner of Canada released an advisory piece in 2020 that outlined the impact of COVID-19 measures in the workplace on privacy rights. The piece outlines factors that are useful for organizations to consider when implementing any vaccination policy. Some of these factors include legal authority, necessity and proportionality, purpose, transparency, and vulnerable populations. Accordingly, unless a vaccination policy is supported by the employer’s occupational health and safety obligations in the workplace, requiring the disclosure of vaccination information may not be proportionate and risk violating an employee’s right to privacy.
Although we are over two years into the COVID-19 pandemic, the authority of employers to implement vaccination policies remains a point of debate. Whether a unionized or non-unionized workplace, the particular health and safety risks of COVID-19 in the workplace remain the paramount considerations in absence of legislation.
Zoe Johansen-Hill, (she/her) is an associate lawyer at MLT Aikins LLP, Saskatoon, who maintains a labour and employment, and general litigation practice.