There are many good reasons why project owners and contractors might wish to restrict worksite access to those who have been vaccinated against COVID-19.
“There is an obvious incentive for owner, contractor and subcontractor corporations to insist on vaccinations for their employees, namely that COVID-19 puts the organization’s workers at a huge health risk, which in turn impacts the organization’s ability to perform work in a timely and organized manner,” write Maria Constantine and Graham Brown of Cassels Brock LLP.
However, such initiatives are currently blocked by numerous legal and contractual obstacles.
Construction is complex work. Most sites require numerous suppliers and subcontractors to work at close quarters. Each might have their own health and safety policies and obligations under collective agreements. These could present challenges to an overriding site-specific policy regarding COVID-19 vaccination.
Nevertheless, those at the top of the construction pyramid have certain regulatory responsibilities that cannot be ignored and must be addressed.
“Primary responsibility for construction project health and safety rests with the ‘constructor,’ and is often contractually assigned to the prime contractor,” writes Sahil Shoor, partner with Gowling WLG. “These responsibilities include compliance with the Occupational Health and Safety Act, its regulations, and any other applicable safety policies, including the duty to take all precautions reasonable to protect the health and safety of workers.”
Shoor lists some of the many questions that an employer or project owner must consider if wanting to initiate a mandatory vaccination policy. These include quantifying the level of influence that be can exerted among their own employees or any outside parties with reasons to be on the jobsite, and what consequences would arise should any refuse vaccination.
Can these issues be resolved?
“It will be very difficult for any employer on a construction site to compel employees to produce evidence of their vaccination status due to privacy concerns around the disclosure of personal health information,” write Constantine and Brown. “Such contradictions could create tension, since a constructor may be required to ensure that its own COVID-19 health and safety policies, including any policies mandating vaccination of workers, are at least as stringent as those imposed by the owner of the site.”
To even get that far, privacy and guarantees under the Charter of Rights must be considered.
“Some employees will have legitimate human rights grounds for refusing to get the vaccine. Others will simply refuse to do so,” writes Shoor.
Then there is the matter of collective agreements.
“In unionized environments, workplace policies requiring that all employees be vaccinated against the flu (or else lose their jobs) have generally been found to be an unreasonable exercise of management rights,” he continues.
Even in a non-union environment, Constantine and Brown point out that, “a mandatory vaccination policy….could be challenged on the basis that it amounts to a unilateral change to a fundamental term of the contract of employment, which could trigger a claim for constructive dismissal.”
“This is an uncharted area of law. Much will depend on legal, regulatory and scientific guidance on this issue,” Shoor told the Daily Commercial News.
Any attempt to initiate a vaccination policy must be reasonable given the circumstances, he adds, and should include, “exceptions, accommodations, and alternative measures for employees unable to get the vaccine on the basis of protected grounds.”
Constantine and Brown add such policies must be connected to the employer’s “legitimate business interests,” including maintaining a safe workplace.
Labour arbitrators have previously upheld the right of employers to temporarily remove employees in medical and residential care environments who refuse to be immunized. However, construction will not likely be elevated to priority status. Consequently, vaccinations within the construction workforce will roll out as they will among the general population, largely on the basis of age, resulting in workers having little control as to when they get their jab.
That alone could make restrictive mandatory vaccination policies a non-starter, for now at least.
John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to firstname.lastname@example.org.