Ontario Construction News staff writer
Since Ontario construction workers may now obtain COVID-19 vaccines, may contractors implement a new policy requiring proof of a COVID-19 vaccination as a condition of employment based on workplace safety?
The answer is a qualified “yes” — though the mandatory vaccination can’t be expected or enforced until there is enough vaccine supply available to cover everyone, two speakers indicated at an Ontario General Contractors’ Association (OGCA) video presentation last Wednesday.
Ron Kelusky, Ontario’s Chief Protection Officer (CPO) and Assistant Deputy Minister of Labour, Training and Skills Development, and Norm Keith, partner at Fasken LLP, outlined how contractors can best adapt and meet their legal obligations as Canadian public health authorities race with highly effective COVID-19 vaccines against virulent and highly contagious variants.
With increasing vaccine supplies arriving each week, the provincial government opened on May 11 its provincial online vaccination registration portal to construction workers, who now qualify because they must work outside of their homes.
The ability to register at https://covid-19.ontario.ca/book-vaccine doesn’t mean that everyone will receive their first vaccine dose immediately. It may take several days (or even weeks) to obtain an appointment at local public health mass vaccination sites. As well, current Canadian public health policy is to defer the required second vaccine dose for upwards of four months; until everyone has the opportunity to get their first dose.
“We are making it very clear in all of our communications that even though you may have got one vaccination, that doesn’t make you immune,” Kelusky said. “You can still get it.”
This means that employers must remain vigilant in ensuring that workers wear proper protective gear including surgical face masks and eye protection if they will be working within two metres of another person (unless you are properly isolated from other workers, such as by a Plexiglass barrier.)
Kelusky said contractors can also access rapid screening tests. The data here indicates that the construction industry has remained relatively safe, despite the latest outbreaks. “We have probably administered close to about 100,000 or 125,000 give or take actual screening tests,” he said, and only a few hundred have tested positive.
As vaccines become more available, Kelusky says he expects that contractors, in co-operation with local public health authorities, will be able to set up vaccination clinics at their offices.
For example, EllisDon is establishing a vaccination clinic tomorrow (May 19) at the company’s Mississauga offices. “It will be available to construction workers and families who live in that municipality, as well as the general public in that hotspot.”
Occupational Health and Safety lawyer Norm Keith observed that current vaccines approved for use in Canada have 100 per cent effectiveness in avoiding serious illness or death, and very high rates in preventing infection and its spread.
He said this fact, plus the obligation employers (and workers) have to take measures to ensure a safe workplace, means that it is reasonable to expect most employees to be vaccinated once sufficient vaccine supply is available.
Occupational health and safety law doesn’t directly address the issue but supports the implementation of formal policies to protect employees from the spread and adverse effects of COVID-19, Keith said. Accordingly, employers can set out a requirement for a proof of vaccination before their workers are allowed “to work in close proximity with (other) workers or third parties.”
What about privacy and human rights issues and how should employers deal with workers who are either hesitant or refuse to be vaccinated?
Keith said employers will need to accommodate workers who may qualify under the “disability” prohibited category of discrimination under the Human Rights Code, and may not be vaccinated for medical reasons. But just being opposed to vaccination – following the “anti-vaxxer” position of some groups – is not a good reason to escape the vaccination requirement, and these workers could be dismissed if they decline to be vaccinated.
As for privacy concerns, the vaccination records should be used purely for the intended health management and protection purposes, and stored safely and only for as long as they are needed – much like an employer would retain drivers’ licence information for employees using company vehicles.
In the more immediate future, while a mandatory vaccination policy is unreasonable, it still makes sense to set out guidelines and prepare for the future.
Keith said the company’s COVID-19 policy on vaccinations would go along with other health and safety provisions, such as mandatory PPE and requirements to stay away from the workplace if the employee is infected. (Notably, Kelusky indicated that if proper PPE is worn on a site, and one employee tests positive, the entire site doesn’t need to be shut down.)
Until vaccinations are widely and readily available, Keith said employers should encourage their workers to be vaccinated and invite them to provide vaccination records. Once vaccination thresholds reach the stage that everyone who can safely be vaccinated can obtain a vaccine, the mandatory policy could be implemented. The few workers with bona-fide health reasons not to be vaccinated may be able to work as usual then, because enough of their co-workers will be protected so that “herd immunity” would apply.
There isn’t a standard template or policy regarding COVID-19 vaccinations. “There is no magic policy or magic bullet that will deal with this, and it needs to be tailored to your particular industry or subindustry in construction and also what you feel comfortable doing,” Keith said.
“Clearly, the issue of enforcing a mandatory proof of vaccine policy as a condition of employment its uncharted territory. The unfortunate part that there should be a Ministry of Labour, Training and Skills Development proof of vaccine policy template, but there isn’t. We need to see provincial leadership to protect workers.
“If you have 10 different policies for different contractors, you may be scrutinized, compared and treated differently by unions and the government inspectors,” he said. “It would be really nice if the government stepped up and helped the industry by providing guidance in this area.”
“If they don’t, give me a call,” he said.