As the COVID-19 vaccine begins to roll out across Alberta, employers may be wondering how vaccinations will be managed in the workplace.
While this is a new issue that has yet to be tested in the courts or tribunals, there are guiding principles that employers should keep in mind when considering how to implement a vaccination policy in their workplace.
Because COVID-19 presents such a serious health risk, employers must ensure that they are providing a safe and healthy work environment in accordance with their obligations under the Occupational Health and Safety Act. To date, this has included measures such as increased PPE in the workplace, physical barriers, and physical distancing measures.
However, with the introduction of vaccines, health and safety obligations must be balanced with an employee’s reasonable expectation of privacy and their rights under the Alberta Human Rights Act. Making a vaccine mandatory for employees is a significant invasion of their bodily autonomy and employers must remain mindful of that fact.
In determining how to manage vaccines in the workplace, employers should consider the following:
- Any vaccination requirement should be clearly set out in a policy. We recommend that employers start considering what this policy should look like now, so that it is ready and employees have received plenty of notice before vaccines are available to the general public in late 2021.
- Employers can make vaccines mandatory but must provide for some exemptions or exceptions where an employee cannot receive the vaccine on the basis of a protected ground in the Alberta Human Rights Act (i.e. disability). Exemptions might include unpaid leaves of absence, alternative work arrangements such as working from home, or provision of additional PPE for workers who cannot be vaccinated.
- Employers should consider the nature of their workplace and whether mandatory vaccinations are necessary to achieve their obligations under the Occupational Health and Safety Act. If there are less invasive options that still meet those obligations, those should be considered before making vaccination mandatory.
- The steps an employer can take when an employee refuses to get vaccinated will depend on why the employee has refused to be vaccinated. In almost all cases, termination should be avoided.
- Employees can be required to provide medical information in relation to vaccinations or refusals to be vaccinated. However, any medical information collected by an employer is subject to strict requirements under privacy legislation and should be carefully collected and managed.
- If an employer has made vaccination mandatory in the workplace and an employee suffers an adverse reaction to the COVID-19 vaccine, that employer is unlikely to be liable for that adverse reaction.
These are just some of the issues and principles that employers should take into consideration when determining how to manage COVID-19 vaccines in the workplace. While this issue is complex and ever-evolving, employers can position themselves to mitigate against many of the risks associated with vaccinations in the workplace if they start considering their policies and procedures now.
To learn more, join us for a complimentary webcast on February 18: COVID-19 Vaccines and the Workplace: Your Questions Answered. Our panel will go deeper and answer your questions. This is the fourth instalment of our series Managing COVID-19 as an Employer in Alberta.
Any policy, and its implementation, should be tailored to address specific workplace circumstances, which will vary from employer to employer. Please feel free to contact any member of our employment team to address issues of specific concern in your workplace.
This article first appeared on the website of Reynolds Mirth Richards & Farmer LLP on January 28, 2021 and is reprinted with permission.
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The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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