Ontario Construction News staff writer
As Ontario approaches the stage within the next few weeks when anyone who wants a COVID-19 vaccination can be vaccinated, should construction employers establish mandatory vaccination policies?
Lawyer Norm Keith, a partner with KPMG Law LLP in Toronto, said “yes” to that question at an online gathering co-ordinated by the Ontario General Contractors’ Association (OGCA) last Monday.
But there can be complications and challenges if a worker – or even more difficult – a supervisor — is a committed “anti-vaxxer” and refuses to be vaccinated, even if there are no valid medical or safety issues to decline the vaccination.
Vaccination policies – short and long form
Earlier, Keith provided OGCA members two draft templates for an Employer Vaccine Policy and a draft letter for employers to encourage COVID-19 vaccinations. He says both the short and long-form vaccination policies are compliant with Ontario law; the long-form goes into greater detail and may be more suitable for larger employers, but both cover the essential provisions of what should be covered.
- All employees need to either provide proof that they’ve been vaccinated (both shots for the two-shot vaccines used in Canada) or a letter from their doctor explaining they have a valid medical reason not to be vaccinated;
- This documentation will be kept secure and used only for the purposes of ensuring the safety of workers and office and site visitors; and
- Workers who cannot be vaccinated for medical or other valid reasons (such as allergic reactions) should be accommodated, perhaps by ensuring they are sufficiently socially distanced from their colleagues or working with other protections.
Keith noted that, while the provincial government has introduced health and safety regulations setting out guidelines for social distancing, masking and other COVID-19 prevention measures, the government has not set out rules requiring proof of vaccination, with the exception of workers in the long-term health care sector.
Keith said more and more inspectors are visiting job sites “and one of the things (the inspectors) are not doing is giving guidance on vaccine policy.”
“So, we still have a gap or a vacuum really where the regulator in Ontario is not giving clear and reliable guidance on what to do both with vaccine and vaccine policies” — leaving the matter to employers.
Keith said the vaccines are truly effective and the data indicates that the chances of being infected – and even more becoming seriously bill – are extremely low once workers are vaccinated.
“We’ve seen anecdotal evidence in Ontario, this is really quite tragic, that about 90 per cent that are hospitalized, intubated and sometimes die from COVID-19, had the availability of a vaccine but chose not to.”
Keith acknowledged that, while employers are likely on strong legal ground in introducing and enforcing a mandatory vaccination/verification policy, they will still have a dilemma if they encounter committed anti-vaxxers who absolutely refuse to be vaccinated.
He suggests that employers should take a measured approach, first by hearing out the employees, and if there are reasons, they don’t want to be vaccinated, to encourage them to visit their doctors and obtain a medical exemption letter.
But, if you’ve reviewed the problem several times and the employee still insists on declining to be vaccinated without medical reason, can you say “therefore we don’t have a position for you” without triggering a constructive dismissal claim, with the potentially serious costs of compensation in lieu of proper notice?
“I think you’re going to have to look at (these situations) case by case,” he said. “It may not be worth your while if the person is an office worker to make the issue a condition of employment.” Employers might just say, for office employers that vaccination is “strongly recommended, but provide (special) rules for the anti-vaxxer to come in and do their work.”
“I mean, in theory, if you have 85 per cent of your staff vaccinated, the herd immunity reduces significantly, but does not guaranteed that the office worker who’s not vaccinated might be affected.”
“So, it’s a dilemma,” Keith said, saying the question becomes “do you value the employee more” than the universal application of the rule?
In that case, there is a risk to employee productivity, especially if other workers assert they don’t want to work with the anti-vaxxer.
Keith said he believes if the matter went to court, the “rights of the majority, since they are safety-focused, will prevail over the right of an objecting individual (the anti-vaxxer).”
If the anti-vaxxer insists continuing without “a lawful basis or excuse to not comply with that policy requirement, then in fact the contract is frustrated and there is a potential argument that says you may not even have to compensate someone who refuses to follow a reasonable policy imposed by this worldwide pandemic on that particular course,” he said.