What risk mitigation efforts should the prudent employer take before employees return to the workplace?
Employer’s duty to protect health and safety
In general, Canadian employers have a legal obligation to take every precaution reasonable in the circumstances to protect employee health and safety. This obligation also extends to protecting employees from communicable illnesses such as COVID-19 and includes any industry-specific and jurisdictional requirements put in place due to the pandemic.
While occupational health and safety requirements vary between Canada’s 14 jurisdictions (made up of the federal jurisdiction, 10 provinces and three northern territories), generally speaking, employers in Canada are required to:
- provide workers with information, instruction, training and supervision on how to work safely;
- ensure supervisors are informed of what is required to protect workers’ health and safety on the job;
- create workplace health and safety policies and procedures;
- ensure parties at the workplace comply with the relevant workplace health and safety policies and procedures; and
- ensure workers wear the required protective equipment and have received proper training on how to use it.
COVID-19 risk mitigation strategies
Employers in Canada are required to take all reasonable precautions to protect workers from contracting COVID-19. What is deemed “reasonable” will necessarily depend on a number of factors, which may include the employer’s industry, size and resources, as well as any circumstantial or fact-specific considerations.
As a starting point, before allowing employees to return to the workplace, employers across Canadian jurisdictions may need to consider:
- properly identifying COVID-19 health risks in the workplace;
- ensuring compliance with all legal requirements that apply depending on the jurisdiction and industry; and
- preparing effective risk mitigation strategies.
For more information on how to create and implement effective risk mitigation strategies in view of reopening the workplace, please see our Roadmap for Canadian employers: Reopening the workplace while mitigating pandemic risks (guide aussi disponible en français).
Although government orders and recommendations may vary by jurisdictions there are a number of measures employers can follow to work towards ensuring a safe and healthy workplace.
Recently, a number of jurisdictions have provided specific guidance on how to maintain health and safety in the reopening workplace and between returning workers. Generally, employers in Canada will have to develop reasonable measures to:
- prevent the risk of transmission of infection amongst workers, volunteers or (as applicable) patrons;
- provide a rapid response if a worker, volunteer or member of the public develops symptoms of illness while at the place of business; and
- maintain high levels of hygiene.
Mandatory face-covering requirements
Most jurisdictions in Canada have mandatory face-covering requirements for indoor establishments accessible to the public. Face-covering requirements are typically imposed at both the provincial and municipal levels, and employers must ensure that they comply with requirements at all levels.
As face-covering requirements in each province regularly change, please see the references to the most important government resources in all of Canada’s jurisdictions at the end of this chapter.
In the federal sphere, the Labour Program has advised that all federally-regulated employers are expected to comply with the relevant provincial and municipal public health legislation. Certain federally-regulated industries, such as the aviation and the railway industries, must comply with specific face-covering requirements.
COVID-19 tracking app
The federal government launched a COVID-19 tracking application called COVID Alert, which allows individuals to anonymously report COVID-19 infections to protect others who have been in contact with the infected individual. The federal government strongly recommends that all individuals download the application and actively report infections. While employers are not legally obligated to require their employees to use the applications, use of the application should be encouraged as it is a cost-effective means of preventing COVID-19 outbreaks in the workplace. For more information about the COVID Alert application, click here.
It can be anticipated that governments across Canada will continue to adapt and develop guidance on how to maintain health and safety in the workplace. That may include specific direction on a number of key issues affecting employers across industries, including:
- screening of employees;
- hand hygiene and respiratory etiquette;
- cleaning and disinfecting in the workplace;
- personal protective equipment in the workplace;
- special hygiene measures for workplace bathrooms and showers;
- distancing and gatherings rules in the workplace;
- capacity limits in the workplace;
- temporary workplace closures;
- quarantine and self-isolation rules;
- travel rules and using foreign workers;
- curfews and permitted hours of operation;
- outbreak protocol and best practices;
- handling goods and preparing food.
It should be noted that any government guidance on the above-noted issues can quickly change, so it will be important to ensure employers remain as flexible, adaptable and responsive as possible in the coming period.
For more information on jurisdiction-specific requirements and governmental guidance, please note we have included additional references to the most important government resources in all of Canada’s jurisdictions at the end of this chapter.
Who should be involved in the decisions to return to the workplace?
Consulting with key stakeholders
To prepare for the safe and healthy reopening of any workplace, it is important to consider which stakeholders should be included in all steps and procedures necessary to ensure health and safety, and compliance with other applicable legal requirements.
One of the first things on an employer’s checklist will be to create a detailed list of all identified risks, and any outstanding issues that need to be addressed in the workplace.
To achieve this, employers may have to conduct a physical walkthrough of the workplace to identify personal, equipment, and surface contact risks. In so doing, employers should give special consideration to which key stakeholders should be engaged in reopening plans. Engaging all appropriate stakeholders may help employers better understand the interactions between and needs of workers, co-workers, third parties in the workplace, and the physical set-up of the workplace.
From a health and safety perspective, stakeholders may include:
- the joint occupational health and safety committee;
- human resources managers;
- a union representative;
- a supervisor or manager from each department; or
- any other party who may be helpful in understanding how employees interact with each other, physical surfaces, work-related required equipment, and externalities in the workplace.
Specific consultation obligations may vary between jurisdictions. For example, in Ontario, employers should work in consultation with the joint health and safety committee or health and safety representative. For unionized employers, the workplace reopening should be planned in consultation with the trade union or representative. It is always best to seek legal counsel to understand any nuances between the requirements of each jurisdiction.
Consulting with and soliciting feedback from employees
Engaging employees by keeping them up to date on developing health and safety measures and reopening plans can also be beneficial to employers, based on a number of considerations.
Firstly, for many employers reopening, work refusals are a central concern. In Canada, workers generally have the right to refuse dangerous or unduly hazardous work if they have legitimate health and safety concerns. Generally, after an employee refuses to work on the basis it is dangerous, the work cannot continue until an investigation is carried out and determines if the refusal is justified or not. In some jurisdictions, the legislation expressly requires the employer to pay the refusing employee, and ensure he or she is in a safe place while the investigation is ongoing.
To mitigate this risk, employers may want to involve workers in certain reopening or returning conversations, and address any legitimate safety-related concerns raised in that context. In practice, this could take the form of consultations with an employee or a union representative. Soliciting employee input could also be encouraged by implementing a confidential and voluntary employee reporting or feedback program that allows employees to raise any concerns they may have regarding workplace safety.
Moreover, for some employees, the stresses and fatigue of the pandemic has had a significant, and perhaps, lasting, toll on their mental health. Ensuring that employees are involved in the reopening process could help to mitigate these challenges, and work to create a sense of reassurance and ease among the workers.
With the above-noted considerations in mind, it is important to note that some jurisdictions have published specific guidance on communicating COVID-19-related information to employees. For example, in Alberta the provincial government has recommended that employers keep in constant communications with employees on developments related to COVID-19, including steps taken to prevent the spread of COVID-19 at the workplace, and the employees’ role in the furtherance of that objective.
Please refer to the links provided at the end of the Canadian portion of this guide for more information on jurisdiction-specific requirements.
What can the prudent employer do to ensure physical distancing in terms of the work space?
Gatherings in the workplace
Federal, provincial, and municipal governments in Canada have all issued orders governing workplace gatherings. The rules that apply to your business will depend on a host of factors, such as the location of your business, your industry, and the scope of products or services you offer to the public. Gathering rules in one jurisdiction are not necessarily applicable to workplaces operating in another jurisdiction. These rules have been the subject of frequent amendments in response to rising and falling infection rates.
To stay on top of this and for more information on jurisdiction-specific requirements and governmental guidance, please note we have included additional references to the most important government resources in all of Canada’s jurisdictions.
Social distancing more broadly
In general, reopening workplaces are required to maintain social distancing, where possible. Where it is not possible, personal protective equipment is generally required or strongly recommended. Throughout the pandemic and again recently, governmental authorities across jurisdictions have provided guidance on how social distancing can be addressed and facilitated in reopening workplaces.
Practical tips recommended by governments in Canada include the following:
- maintaining a two-metre distance (i.e., install floor markers to indicate this distance, or employ staff to manage this distance in lineups, while ensuring the staff maintains their distance too);
- erecting plexiglass barriers when two metres cannot be maintained between workers, or workers and the public;
- re-arranging where staff are assigned to work to optimize physical distancing;
- reducing the number of passengers on elevators and avoid crowding in stairwells and other tight spaces;
- considering implementing a system for virtual and/or telephone/video consultations when and where possible;
- postponing non-essential face-to-face appointments or convert to virtual/video appointments;
- depending on the jurisdiction, requiring or encouraging the mask-covering measures;
- suspending all group activities and gatherings;
- holding meetings in outdoor spaces, where permissible;
- directing traffic flow within the business (e.g., establishing one-way shopping aisles);
- installing a physical barrier, such as a cubicle, partition or window, to separate workers, volunteers and patrons;
- increasing separation between desks and workstations;
- eliminating or re-structuring non-essential gatherings (e.g., meetings, training classes) of workers, patrons and volunteers, such as moving in-person meetings to virtual media platforms such as teleconference or video conference;
- implementing contact-free modes of patron interaction such as home delivery of goods or curb-side pickup of items;
- removing chairs from spaces.
Although the measures discussed above are not exhaustive, they provide some insight into how employers can think creatively to ensure their workplaces reopen in a legally compliant manner.
What can the prudent employer do to ensure physical distancing in temporal terms?
In addition to the measures discussed in the response to the previous question, governments in Canada have recommended a number of measures to ensure social distancing in the workplace.
Governments in Canada have recommended the following to promote social distancing in temporal terms:
- having staff work from home whenever possible (i.e., administrative staff);
- staggering start times, breaks and lunches;
- reducing the numbers of people in the workplace (e.g., cease non-essential work; staggered, shorter work hours; customers admitted in limited numbers);
- restricting the number of employees, volunteers and patrons in a business at any one time;
- limiting the number of people in shared spaces (such as lunchrooms) or staggering break periods;
- limiting hours of operation or setting specific hours for at-risk patrons; and
- wearing a mask in public indoor spaces, where possible.
It should be noted that, in many respects, some of the recommended measures may require support from human resources and other departments, as well as heightened supervision from management. It will therefore be important to regularly communicate with all managers and supervisors, as well as with employees, to the extent possible.
For more information on jurisdiction-specific requirements and governmental guidance, please note that we have included references to the most important government resources in all of Canada’s jurisdictions.
What protections should the prudent employer consider implementing, in addition to physical distancing?
Additional protections will vary depending on the employer, as well as its jurisdiction and industry.
Across Canada, many government authorities have recommended a number of additional protections to protect against COVID-19. These include the following:
- ensure all high-touch tools and surfaces are cleaned regularly;
- provide workers with more opportunities to keep their hands clean, for example by providing soap and water or hand sanitizer if soap is not available;
- ensure workers are using any required personal protective equipment appropriately;
- remind workers to stay home if they are sick;
- consider what screening measures can be implemented for employees and customers;
- maintain bathrooms and showers and any associated amenities in a clean and sanitary condition.
- screening employees, where appropriate to do so
- Some jurisdictions now require or recommend that employers post business or health and safety plans for returning employees;
- In some provinces, employers are encouraged to partake in awareness initiatives. For instance, in Quebec, employers may sign the province’s Charte d’engagement à combattre le coronavirus en milieu de travail, which, though a symbolic gesture, promotes alertness and compliance with the province’s pandemic-related requirements in the workplace.
For more information on jurisdiction-specific requirements and governmental guidance, please note we have included references to the most important government resources in all of Canada’s jurisdictions.
How can an employer screen its employees, including temperature testing, COVID-19 testing and questioning?
As discussed in previous questions, employers are required to take every precaution reasonable in the circumstances for the protection of a worker. Given the highly infectious nature of COVID-19, this obligation includes implementing reasonable measures to limit the spread of COVID-19 in the workplace. The appropriateness of screening, testing or other control measures to eliminate or minimize the potential for occupational exposure will depend on the risk level of each workplace.
For workplaces with lower risk levels, reasonable control measures may include posting signage for proper respiratory etiquette and hand hygiene, providing sanitization facilities such as hand washing or hand sanitizer stations, frequently cleaning and disinfecting commonly used spaces in the workplace, increasing distance between workstations and making sure that employees are aware of the steps to take if they experience any symptoms of COVID-19.
For workplaces with higher risk levels, such as those engaged in health care, food services, manufacturing etc., more extensive control measures may be justified. In these workplaces, it may be reasonable for high-risk workplaces to implement mandatory screening and/or testing (including self-declarations, reporting programs, and temperature testing) prior to admitting entrance to the workplace. This would also likely be justified where there is evidence of an outbreak in either a high- or low-risk workplace.
However, in some jurisdictions, occupational health and safety legislation provides employers with the right to establish a medical surveillance program or provide for safety-related medical examinations and tests. These measures are only permitted in certain circumstances, as prescribed by law. It will therefore be important to consult legal counsel before implementing screening procedures in Canada.
An employer’s occupational health and safety obligations in these circumstances must be weighed against the protections afforded to an individual’s privacy and human rights. As will be noted, in light of the COVID-19 pandemic, a balancing of interests approach would likely favour the health and safety of the workplace and public over the employee’s individual rights.
In some jurisdictions, such as Ontario, human rights bodies have taken the position that conducting a medical assessment to verify or determine an employee’s fitness to perform his or her work, such as taking an employee’s temperature, may be permissible. However, employers should only collect information from medical testing that is reasonably necessary to the employee’s fitness to perform on the job and any restrictions that may limit this ability, while excluding information that may identify a disability.
On the other side of the country, in Alberta, the provincial government recommends employers implement active daily screening of workers for symptoms of fever, sore threat, cough, runny nose or difficulty breathing. Employees with these symptoms should not be allowed into the workplace. Employers are further advised to keep a contact list for all workers to enable quick contact and tracing close contacts.
Finally, where a positive case of COVID-19 is confirmed in the workplace, there are a number of considerations and measures employers should keep on their radar.
If it is deemed that screening employees is required, the following best practices should be considered:
- Employees should be provided with advanced notice in writing of the testing measures being implemented for entrance to the workplace prior to their arrival at the premises. This notice should state the purpose of the testing, explain the methods being used and provide information on the steps that will be taken based on the outcome of the test.
- Any testing should be performed by a qualified medical professional, such as a nurse, who is able and qualified to properly administer the tests and interpret the results.
- Testing must be conducted in the least intrusive manner (i.e., using no contact devices or methods) and be performed in a space that protects the employee’s privacy. For example, have a testing area set up in a private, low-traffic area.
- Testing should be conducted in a safe manner that does not place the employees or the medical professional conducting the test at risk. For example, the testing area should be frequently cleaned and disinfected, hand sanitizer or washing stations should be provided and the medical professionals should wear the proper personal protective equipment while performing the tests.
- Where a test result reveals that an employee’s temperature is above the prescribed level, the employee should be instructed to leave the workplace immediately. If available, it is recommended that the employee complete a self-assessment online and call his or her public health authority. For example, in Ontario, this would mean completing the online self-assessment, or calling either Telehealth at 1-866-797-0000 or asking the employee to contact his or her primary care provider. Federally, this would include the COVID-19 Self-Assessment Tool and the Canada COVID-19 Support App. The employer should have a system in place where the employee can leave the workplace safely and discreetly so as to ensure no contact is made with other employees and to preserve the employee’s privacy and dignity.
- If medical information is obtained by the employer, it must be handled in accordance with applicable privacy legislation.
- Where the testing performed in a unionized workplace, the employer should ensure that testing is performed in accordance with the applicable collective agreement. Where the testing is not permitted under an applicable management rights clause, the employer should consult with the union prior to implementing the testing.
Any mandatory testing program should regularly be reviewed and re-evaluated to ensure compliance with evolving rules and legislation in this area.
What are the requirements regarding travel – either to or from the office or business travel?
The government of Canada has advised that all non-essential travel abroad should be avoided at this time, including to the United States, subject to certain exceptions, such as those applicable to immediate family members of Canadian citizens and permanent residents. The Government of Canada has also recently introduced new testing requirements for all international travellers into Canada by land and air, as well as mandatory hotel self-isolation upon arrival, both of which can impose significant costs for travellers and their employers. Note, also, that all those entering Canada, including returning Canadians and permanent residents, are legally required to self-quarantine for 14 days upon arrival, and that foreign nationals who exhibit signs of COVID-19 will not be permitted to enter Canada at this time.
As a result, employers should, as a best practice, cancel all non-essential travel of their employees at this time.
However, if someone must travel, the government has recommended that the following be followed during transit:
- avoid large crowds or crowded areas;
- avoid contact with sick people, especially if they have a cough, fever or difficulty breathing;
- be aware of the local situation and follow local public health advice;
- wash your hands often with soap under warm running water for at least 20 seconds;
- use alcohol-based hand sanitizer if soap and water are not available and always keep some with you when you travel;
- practise proper cough and sneeze etiquette.
To monitor changes on government-ordered travel restrictions, please click here.
Traveling to or from the office
In all Canadian jurisdictions, workers should follow the general public health measures when travelling to or from the workplace.
Government health measures and recommendations when traveling or commuting may include:
- respecting all social distancing rules;
- cleaning hands properly;
- wearing a face covering;
- considering travel during off-peak hours or limiting transit;
- reminding employees to stay home if they are sick;
- discussing with employees steps they can take to mitigate the risk of transmission in non-work settings such as during commute to and from work.
For more information on jurisdiction-specific requirements and governmental guidance, please note we have included additional references to the most important government resources in all of Canada’s jurisdictions at the end of the Canadian portion of this guide.
How does the prudent employer decide which employees should return to the workplace?
Deciding who can, should and must return to the workplace is an exercise that will depend on the nature of the employer’s business and the resources required to keep the physical workplace open and operational.
Although specific requirements and needs may differ from employer to employer, there are a number of best practices that can be considered across the board, including:
- reminding workers to stay home if they are sick;
- considering making the return to the workplace voluntary for some of the workforce as part of a gradual integration, to the extent possible;
- minimizing the number of employees working at the workplace at any one time, to the extent possible;
- limiting the employees returning to work to those critical for the operation of the business or whose duties cannot be performed at home;
- remaining mindful of all obligations under applicable human rights and occupational health and safety legislation, which prohibit discrimination, harassment and violence in the workplace;
- giving special consideration to potential issues of discrimination that could arise in the workplace, be they based on disability, race, ethnicity or national origin. Under human rights legislation, employers have a duty to accommodate employees, including those with a disability or family care-giving responsibilities. Please see here for our update on a British Columbia Human Rights Tribunal’s decision relating to British Columbia employers’ obligations to accommodate employees with family care responsibilities in the context of COVID-19;
- facilitating the ability of employees to work from home to the extent possible. A legal update on an employer’s right or ability to monitor remote-working employees can be found here.
For more information on jurisdiction-specific requirements and governmental guidance, please note we have included references to the most important government resources in all of Canada’s jurisdictions at the end of the Canadian portion of this guide.
What if an employee refuses to return to the workplace?
Employees’ right to refuse work in Canada?
Generally speaking, health and safety legislation across the country allows employees to refuse work in dangerous or unduly hazardous situations, depending on the wording of the governing legislation. Moreover, collective agreements may also have work refusal provisions that apply in specific work environments. Most commonly, work refusals arise when employees refuse to do something they have been asked to do, because of unsafe operating equipment, or the physical condition of the workplace. Depending on the circumstances, employees can refuse to do either a single task or a series of tasks at work, or can refuse to work altogether.
To lawfully refuse work in Canada, employees must meet a certain threshold, which may vary depending on the jurisdiction. For instance, in some jurisdictions, such as Alberta, work refusals must generally be based on reasonable grounds. In others such as Ontario, the worker must only have a “reason” to stop work initially, which may be a subjective reason, and later the inspector determines if the situation is “likely to endanger” on a reasonableness standard.
Refusing employees must therefore have legitimate health and safety concerns, and the evidence must demonstrate the employee is at risk or likely to be at risk because of a hazard or condition in the workplace. For this reason, employees cannot refuse work because of preference, taste or personal comfort. Determining what constitutes a danger is not always an obvious exercise. The analysis will therefore be situationally driven and will crucially depend on the evidence of the case.
The ultimate determination of whether or not a work refusal is reasonable in the circumstances is a question of fact, dealt with case by case. For example, in some cases, employees will face normal conditions in the course of their employment that carry some risk, such as those working in the emergency services sector. A work refusal in that context may not be justified, whereas it may be reasonable for employees working in other domains to do so under the same conditions.
The procedural steps of a work refusal, generally
In addition, employers in Canada should be mindful that the procedural requirements surrounding work refusals vary by jurisdiction. Generally speaking, refusing workers are first required to notify their supervisor or employer that their or another’s health or well-being is being endangered by a condition or hazard in the workplace. Once notified, the supervisor or employer must investigate to determine whether the circumstances justify the worker’s refusal to work. This is often done in the presence of the employee, joint health and safety representatives and/or a union representative. Based on this assessment, the employer then determines if the work refusal is justified.
If the refusal is justified, the employer has a duty to ensure safety is re-established, and the refusing employee may thereafter return to work. If the refusal is not justified, the employee will be directed to return to work. If the employee disagrees with the employer’s decision and continues to refuse to work, the appropriate government regulator would appoint an inspector to conduct a health and safety inspection surrounding the circumstances of the refusal. Following the investigation, the inspector decides if the work refusal was lawful due to a condition or hazard in the workplace and sends his or her findings to the concerned parties.
- Employers should follow all health and safety measures and recommendations specific to their jurisdiction and industry.
- Keep lines of communication open and transparent with employees, to the extent possible. For more information on communicating with employees, please see Question 2.
- It should be noted that at all stages of the investigative process, health and safety statutes across Canada require that employees cooperate with employer investigations and, if applicable, the appropriate government authority.
- Regardless of the situation, before getting too deeply involved in any dispute related to work refusals on the basis of COVID-19, it would be wise to seek legal guidance on how the process works in any specific jurisdiction.
For more information on work refusals in Canada, please see here. For those interested in the province of British Columbia specifically, please see here.
What other considerations should the prudent employer be thinking about at this time?
As we now know, the impact of COVID-19 transcends the domain of health and safety. Indeed, employers will have to address a constellation of issues in other areas of the law, which may include layoffs and redundancies, COVID-19-related leaves of absence, vacation and flexible work, mental health, privacy, human rights and various government relief programs.
Staying well positioned
To conclude, it should be mentioned that not every workplace challenge can be fixed by our legal regime. For example, when addressing a situation where an employee refuses to perform work on the basis of health and safety concerns, the objectivity and legitimacy of those concerns are and will undoubtedly continue to often be elusive. Work refusals may in some cases manifest themselves despite the implementation of risk mitigation measures and strategies, and regardless of disciplinary or job loss consequences. As a result, management and human resources teams will need to enhance transparency, communication and consultation processes in particular around enhanced safety measures taken in their workplaces.
Looking onwards, it can be anticipated that government guidelines discussed and referred to in the previous questions may be subject to future change as the economy gradually reopens. To stay on top of it all, we have provided you with some of the key resources published by government authorities in every Canadian jurisdiction, commencing with the federal jurisdiction, followed by the provinces and territories listed in alphabetical order below.
(For private sector employers)
Government of Canada
Bank of Canada
Canadian Centre for Occupational Health and Safety
Canadian Human Rights Commission
Office of the Commissioner of Official Languages
Office of the Privacy Commissioner of Canada
The Public Health Agency of Canada
Government of Alberta
Alberta Human Rights Commission
Office of the Information and Privacy Commissioner of Alberta
Workers’ Compensation Board
BRITISH COLUMBIA (BC)
Government of British Columbia
BC Centre for Disease Control/BC Ministry of Health
Office of the Human Rights Commissioner (British Columbia)
Office of the Information and Privacy Commissioner for British Columbia
Government of Manitoba:
SAFE Work Manitoba
Manitoba Workers’ Compensation Board
NEW BRUNSWICK (NB)
Government of New Brunswick
New Brunswick Human Rights Commission
NEWFOUNDLAND AND LABRADOR
Government of Newfoundland and Labrador
Human Rights Commission of Newfoundland and Labrador
Office of the Information and Privacy Commissioner
NORTHWEST TERRITORIES (NWT)
Government of Northwest Territories
NWT Human Rights Commission:
Workers’ Safety and Compensation Commission and Northwest Territories and Nunavut
Government of Nova Scotia
Worker’s Compensation Board
Office of Information & Privacy Commissioner
Nova Scotia Human Rights Commission
Government of Nunavut
Workers’ Safety and Compensation Commission and NWT and Nunavut
Government of Ontario
Information and Privacy Commissioner of Ontario:
Workplace Safety and Insurance Board Ontario
PRINCE EDWARD ISLAND (PEI)
Government of Prince Edward Island
Workers’ Compensation Board of PEI
PEI Human Rights Commission
Gouvernment du Québec
Commission des normes, de l'équité, de la santé et de la sécurité du travail (Québec)
Institut national de santé publique (Québec)
Commission des droits de la personne et des droits de la jeunesse (Québec):
Commission d’accès a l’information du Québec
Government of Saskatchewan
Saskatchewan Workers’ Compensation Board
Office of the Saskatchewan Information and Privacy Commissioner
Government of Yukon
Yukon Workers’ Compensation Health and Safety Board
Yukon Information and Privacy Commissioner
What are the safety and employment issues for consideration regarding the vaccines?
In Canada, blanket workplace policies that require all employees to be vaccinated – or else terminated – have generally been found to be an unreasonable use of management’s rule-making authority or otherwise inconsistent with principles of labour law.
In addition, given the human rights values at stake, case law has held that consenting to a potentially invasive medical treatment, like vaccination, is an inherently profound and personal decision that individuals themselves should ultimately make.
When it comes to a workplace vaccination policy, depending on the nature of the workplace and in cases of an outbreak or where there is evidence of high risks of transmission in the workplace, a policy that restricts access to the workplace depending on vaccination status may be enforceable in limited and specific circumstances:
- if it is backed up with verifiable facts and convincing evidence (for example, that the vaccine prevents transmission and that existing sanitary measures such as face coverings and social distancing are insufficient);
- it provides for a reasonable, non-disciplinary alternative(s) to vaccination (for example, unpaid leave of absence); and
- it accounts for the rights of employees, including those under human rights and privacy laws. Additional accommodation measures may be necessary.
For more information on this topic, click here for our legal update.