On September 2, 2021, Ottawa Public Health (OPH) announced the release of A Guide on How to Create a Workplace Vaccination Policy (the “Guide”), revised on September 13, 2021. There have been recent and rapid developments regarding mandatory vaccination policies in particular sectors. The Ontario government also recently announced a mandatory vaccination requirement for people to access certain settings and businesses, but that regime does not apply to employees. This guidance may therefore be of assistance to employers who are not covered by sector-specific mandatory requirements.
Risk Assessment
The Guide notes that employers should continuously assess the risk of transmission of COVID-19 in the workplace. Considerations include:
- Whether workers are required to be in close contact with others;
- Whether physical distancing can be maintained;
- How long and how often workers are in close contact with other workers or customers;
- The physical measures in place, such as barriers, ventilation, and personal protective equipment (PPE);
- The size of the workforce and its vaccination rate;
- Whether workers or clients may be at risk for severe illness from COVID-19, or may be unable to be vaccinated; and
- The alternate measures available for those who require accommodation.
Key Components of a Vaccination Policy
The vaccination policy should include:
- Confirmation that continued adherence to COVID-19 prevention measures and public health guidelines is required;
- A clear outline of the scope and purpose of the policy (e.g. the effectiveness of vaccines in preventing serious illness and limiting the transmission of COVID-19 to others, and the increased contagiousness and increased likelihood of severe outcomes and hospitalization resulting from the Delta variant);
- An explanation of who the policy applies to. For example, consider whether it applies to contractors, students, volunteers, and customers, in addition to employees;
- An indication that the policy may evolve if there are changes to the pandemic situation or to applicable legislation and public health advice;
- A list of required actions for those covered by the policy, such as:
- Provision of proof of vaccination status, including how proof will be provided while addressing privacy concerns;
- Documentation requirements for unvaccinated employees, such as proof of a legitimate medical exemption from a licensed doctor or nurse practitioner, including whether the reasons are temporary or permanent; and
- Reasonable deadlines for when workers are required to demonstrate compliance with the policy, such as dates for first or second doses of the vaccine.
The Guide recommends the development of a clear communications plan in order to educate workers about the policy.
Available Supports for Vaccination
The policy should outline the employer’s commitment to supporting employees in getting vaccinated. The Guide mentions numerous ways that this can be accomplished, such as:
- Providing vaccine information from trusted sources;
- Encouraging employees to discuss their concerns with their health care providers;
- Providing paid leave for vaccination and reminding employees of applicable sick leave entitlements; and
- Engaging employees in communications.
Non-Compliance
The policy should outline the requirements and consequences for an individual who voluntarily decides not to be vaccinated. The Guide indicates that an option is the completion of a vaccination education course, similar to what can be found in the Ontario Chief Medical Officer of Health’s Directives and Instructions.
Provisions for Unvaccinated Workers
The Guide notes that for those who decline vaccination for reasons that are protected by law, such as the Human Rights Code, alternative options should be listed. Options may include relocation, modified work, reassignments, or unpaid leave. The Guide also recommends that in the event of a COVID-19 outbreak, unvaccinated and partially vaccinated workers (defined as those who have only received one dose of a two-dose COVID-19 vaccine series, and those who are less than 14 days since their second dose) should not be allowed to work in the outbreak area. Additionally, workers without vaccination records should be treated as unvaccinated.
Privacy Considerations
The policy should state that information about an employee’s vaccination status is subject to applicable privacy laws. It should be clear on how personal information will be used. For example, vaccination status might be shared with OPH in the event of COVID-19 transmission in the workplace. The Guide recommends limiting the collection, use, disclosure, and retention of personal information to what is reasonably necessary, and keeping vaccination information separate from a worker’s personnel file.
Employers should develop a plan for safeguarding employees’ personal information and ensuring that secure measures are in place to retain, access, and dispose of vaccination status records.
Other Considerations and Resources
The Guide recommends having a staff contact about the policy, privacy concerns, accommodation requests, or compliance questions. It notes that workplaces can host a vaccination clinic in partnership with OPH. Importantly, the Guide includes the following reminder:
Routine asymptomatic testing is not an equivalent substitute for a completed series of a COVID-19 vaccine. Ensuring that employees are fully vaccinated and continue to follow all public health measures in the workplace remains the best way to protect individuals and our community against COVID-19.
The Guide links to other OPH resources, such as the COVID-19 Vaccine Toolkit for Employers, and OPH’s own immunization policy.
In Our View
The considerations outlined in the Guide are a useful starting point, but it must be remembered that the document is general in nature. Employers must still consider the risks and circumstances applicable to their particular workplace, and tailor their vaccination policy to their business.
Vaccination policies can raise complex issues, such as whether it is reasonable to require mandatory vaccination, and what an employer should do when an individual covered by the policy voluntarily refuses vaccination. Vaccination policies may have human rights and privacy implications, or may invite grievances under collective agreements or complaints of constructive or wrongful dismissal by non-unionized employees. For these reasons, it is important for employers to obtain legal advice to help them understand their risks and obligations, and to ensure that their vaccination policies are tailored to the needs of their workplace.
For more information, please contact J.D. Sharp at 613-940-2739.
