Construction lawyer Norm Keith is urging all Ontario construction employers to prepare workplace vaccination policies as issues related to mandatory vaccinations, the anti-vax movement and zealous government enforcement of COVID-19 safety policies are becoming new battlegrounds in the province’s construction sector.
Keith’s warning came in the second half of an Ontario General Contractors Association (OGCA) webinar held May 12 and billed as Guidance for Construction and Establishing your Workplace Vaccine Policy.
Keith’s legal session followed a presentation by Ontario Chief Prevention Officer Ron Kelusky, who revealed that EllisDon would be hosting construction’s first workplace vaccination clinic beginning May 19.
Keith, a partner with event co-host Fasken LLP, said employers are currently caught between anti-vaxxers who “prance around” jobsites coughing and refusing to get vaccinated, and the Ministry of Labour who have a mentality of aggressive enforcement.
“I could go on a 20-minute rant, which we don’t have time for, about how many of my clients have been really treated poorly by the inspectors,” he said, noting a “multiplicity of charges” related to COVID that have his construction clients asking why the ministry is not supporting them.
Keith said there is a “very high level of commitment of the current provincial government to prosecute employers for failure to comply, which, you know, they prosecute far more than any other province in Canada as a method of enforcement. There is no guidance for employers and unions on the vaccine issue for workplaces, especially construction. You’re left wondering, what is the legal framework?”
Keith told the OGCA members that their obligations to keep workplaces safe from COVID stem from the Occupational Health and Safety Act (OHSA).
Meanwhile, workers have a legal obligation not to work in a manner that is dangerous to another worker. In other words, said Keith, “Workers have a legal duty not to come to work with COVID.
“That should encourage and support your COVID safety plan.”
In addition, Keith said, those legal obligations may also support mandatory vaccination policies, though he currently could not recommend that step given there is an inadequate supply of vaccines. But eventually there will be.
“So, what does that mean? Well, I wish the Ministry of Labour would give guidance on this in the context of vaccines, but my opinion, it means that if you can mandate mandatory proof of vaccination, that is a very reasonable precaution to require workers to take,” he said.
Lack of such policies will mean prosecution, he said: “Because we know that physical distancing and masking is not as effective as vaccines, you will be held accountable, with a serious risk legally that you will be prosecuted. There is risk of jail for officers and directors of companies as well as supervisors.”
There will be human resources exemptions from a mandatory proof of vaccination policy such as disabilities or religious beliefs, but Keith said he does not believe anti-vaxxers will be able to take advantage of them because ideological positions are not human rights.
Keith said his advice is for employers to talk to their unions.
“It’s important to talk about the big picture of how many people have got sick and died because of this. And it’s important to deal with the outliers and anti-vaxxers and vaccine hesitancy theory. That all should be part of the constructive dialogue.”
In his presentation, Kelusky explained construction workers are now eligible to apply to be vaccinated according to the government’s current eligibility protocols for essential workers. The protection of vaccines will further bolster the efforts of the construction sector to work safety, he said, with the latest evidence being how construction employers and workers have embraced the provincial antigen screening program.
As of May 11, Kelusky said, 32 construction organizations are participating in the screening program; 350,000 tests have been shipped; and 268 positive tests have been reported.
Kelusky noted that vigilance in wearing PPE including medical-quality masks is still required even with the increasing protection of vaccines.
The OHSA is now requiring the use of PPE when within two metres of another person, indoors or outdoors. And several other guidance documents have also been updated, Kelusky said.
“Until somebody stands up on a chair and says this thing is over, we have to continue with the due diligence.”
Kelusky said efforts to develop construction vaccination clinics have been intense with several firms and other stakeholders expressing interest in hosting clinics including Carpenters’ Local 27. The EllisDon clinic will be set up at its Middlegate Road facility in Mississauga.
“It’s quite an intensive process to be able not only to be selected, but actually to set it up, because the host, that being the construction firm that is doing it, really has to cover all the costs with the exception of vaccinations,” Kelusky said, adding there will be ample support through the public health agency and the local municipality.
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