All Choices Have Consequences

By Jeff Palamar

Manitoba has recently been on a roller coaster of public health orders. As of writing, masks are back, and many events/activities/establishments are now open, but only to fully vaccinated clientele. In sharp contrast, public health officials encourage (but don’t require) private businesses and organizations to follow the province’s lead and mandate COVID-19 vaccination for their employees.

Employers should not default to the easy choice of not forcing vaccines, simply because they are not specifically required.

Employers have a legal obligation to take all reasonable steps to ensure a safe workplace for their employees and visitors to the workplace. Choosing to ignore the ongoing risk of COVID-19 has consequences. Such a choice clearly breaches that obligation, needlessly puts others at risk, and risks liability for an employer.

What is the “new-normal, version 2.0” for employers? Some basic points to keep in mind, particularly for non-unionized workplaces: 

• Simply because the law does not mandate certain safety precautions in all cases, does not mean you as an employer acting reasonably would not individually be required to take those safety precautions in your specific environment. Above all, you have to act reasonably to try and maintain a safe workplace. What that means for you can be something quite different than for somebody else.

• Apart from your legal obligations there are business questions to consider as well. Whether or not you are strictly required to live up to your legal obligations, as a business decision are you choosing to offer an environment where only double vaccinated people work or attend as customers?

• Employers have every right to ask employees if they have been vaccinated and what their plans are regarding vaccinations. The obligation to ensure a safe workplace requires you to obtain this information. Obviously, though, this is private health information that is confidential and must be kept secure on a need-to-know basis.

• You can quite properly require employees to provide proof of vaccination. This can be done by viewing their QR code or vaccination card and making a note in a secure file that this has been verified. 

• If somebody has a legitimate reason for not being vaccinated, such as a human rights consideration, then you would have an obligation to reasonably accommodate that employee to the point of undue hardship. 

• The most likely human rights considerations would include accommodation of those who cannot get the vaccine for genuine medical reasons or genuine religious reasons. That said, I am not presently aware of any religious affiliation which would prevent someone from being vaccinated.

• The obligation to accommodate means finding out what you can from the employee and making an informed and reasonable decision in terms of how (if at all) you can make the relationship continue to work. That might mean allowing the employee to work remotely, providing certain personal protective equipment, having the employee reassigned or excluded from interactions with others, maintaining certain safety protocols if anybody interacts with that employee, etc. 

• Accommodation to the point of undue hardship does not mean accepting whatever the employee demands or being forced to allow an unvaccinated employee to attend at your workplace. What is required really depends on the circumstances of your specific workplace and the specific employee. A one-size-fits-all policy is not the answer.

• It is conceivable that other human rights considerations could apply, but unlikely. If somebody simply chooses to not be vaccinated, that is their choice, but there are consequences. You don’t have the legal obligation to accommodate that employee’s choice and may choose to accept or reject it.

• It may be that for a period you let the employee work remotely or otherwise accommodate them. If, however, your goal is to have everyone at the workplace double-vaccinated, and you don’t want someone working remotely and don’t accept any other accommodation, then you can give notice to the employee that is going to be the law of the land as of a reasonable future date. The employee then has the choice of getting in line with that new requirement or having have their employment terminated at that future date. As in effect you would be giving working notice, they would not be entitled to severance pay.

• What you decide to do will depend on the specific situation, both within your workplace and vis-à-vis the employee. It also will depend on the changing circumstances in society overall and the business decisions you choose to make. 

Some of these principles will also apply in a unionized workplace, but things are complicated somewhat by the fact there is a collective agreement in place which may well limit or impact what you can do. Broadly speaking, employers cannot breach their collective agreements but also cannot create policies which are unreasonable. There is a series of older cases dealing with unionized employers and the “mask or vaccinate” dilemma with unions arguing that requiring a vaccination as a condition of employment was unreasonable, when instead adequate protections could be achieved by requiring a mask. 

These cases do not deal with COVID-19 virus and are split in result. Each was decided on the evidence that was presented to the respective arbitrator and include assessments of the likelihood of someone becoming ill, the effects of that, and the relative protections offered by masks or vaccines. At present, there are no Canadian cases on point dealing with COVID-19 to provide guidance.

There are posted speed limits on our roads, but those limits are always subject to the overriding consideration of driving safely based on the circumstances at hand. The absolute restrictions that remain must be obeyed. What you do beyond that is a matter of individual choice, subject to being second-guessed and facing the consequences if your choice is found to be inappropriate. Professional advice should be sought up front to help you make the right choice.

Jeff Palamar is the leader of the Labour and Employment Law Practice Group at the Winnipeg law firm Taylor McCaffrey LLP. Since 2008 Jeff has been listed in the peer-selected Best Lawyers in Canada in his field. He focuses on helping employers thrive by finding creative and proactive solutions to the challenges they face.

Taylor McCaffrey LLP is the exclusive Manitoba member of the Employment Law Alliance, the world’s largest network of labour and employment lawyers.