A recent survey found that a large majority of small- and medium-sized employers in Ontario will implement mandatory vaccination policies for their workers.
The employers have concluded the policy is not only the best way to meet legislated workplace safety obligations but also the best way to keep their workplaces safe, suggests Ontario employment lawyer Norm Keith of KPMG Law LLP.
KPMG in Canada found that 62 per cent of Canadian small- and medium-sized businesses are making or planning to make COVID-19 vaccinations mandatory for their employees.
Keith, who is advising the Ontario General Contractors Association on workplace vaccination policy, said the KPMG study was intended to gauge sentiment among small- and medium-sized businesses on a number of issues related to the COVID vaccine, especially given there is now sufficient supply to vaccinate every Canadian.
With employees returning to work, employers need to develop a safety framework, and mandatory proof of vaccination is a policy that is gaining acceptance.
“Businesses are grappling with how to navigate the issue of mandatory vaccination and determine whether or not they are legally permitted to require their employees and, in some cases, their customers, to provide proof of vaccination,” said Keith.
“Our poll found a wide consensus among employers that vaccination is the most effective way to protect workers and customers and key to avoiding a new wave of infections and lockdowns.”
Of employers surveyed, 84 per cent agree that vaccines are important to avoiding another lockdown and should be mandatory; 84 per cent support vaccine passports to perform certain jobs or enter certain places; and 90 per cent feel they are well prepared to bring employees back to the workplace safely.
“Businesses are seeing that mandatory proof of vaccination policies are a way to stay in business, a way to survive,” Keith said.
Ontario’s Occupational Health and Safety Act requires employers to take steps to keep their workplaces safe, Keith noted.
“From a safety law and a safety professional perspective, the best way to address any hazard or potential hazard workplace is to do a hazard assessment,” he explained.
“So, it’s looking at the publicly available information on the virus, the fact that over 26,000 people have died, that there’s over 20,000 workers compensation claims for Ontario alone.”
Contractors should engage workplace stakeholders through joint health and safety committees to assess the risk, he said, and determine suitable workplace policies.
“If it’s all outdoor work, if it’s all likely two metres apart indoor for short periods of time, maybe there’s close contact, but it’s not frequent close contact, those would be the kind of criteria that a good risk assessment would take into account.”
Overall, employers need to balance their health and safety legal duties with an employee’s privacy interests and human rights law protections.
Key considerations for employers are their legal obligation to keep workers safe; they need to recognize and accommodate exemptions protected by human rights law and the duty to accommodate; and their need to assess whether alternative measures such as rapid testing, social distancing and minimizing time worked in close proximity to others should be considered.
Employers then have to come up with the best elimination or mitigation strategy, Keith said, and it’s appropriate for an employer to look at public health guidance.
“It’s really up to individual employers who have that employment relationship to make their best, informed decisions on meeting their legal obligations, to take every reasonable precaution in the circumstance for the safety of workers at that particular business, at that particular construction site.”
Courts will decide whether a policy is for a reasonable purpose and Keith said in the case of mandatory vaccines the answer is going to be yes.
He pointed out that workers have a duty not to work in a manner that could adversely affect their own or anyone else’s health and safety. The internal responsibility system under health and safety law gives workers shared responsibility.
“We’re hearing more and more examples of workers who are vaccinated refusing to work with workers who’ve decided not to be vaccinated,” Keith said. “So, to avoid that kind of work disruption and workplace conflict, an employer should really come up with a policy that may not get a complete buy-in, but certainly is consensus driven for its likely best success in the workplace.”
Keith said if employers can’t persuade unvaccinated workers or motivate them to get vaccinated and they don’t have a lawful exemption, “I think there might be temporary layoffs or layoffs for cause.”
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