6 key legal questions around booster shots and the workplace
With millions of Canadians now fully vaccinated after getting two shots, there is now a push by Health Canada to urge certain populations to get a third booster shot.
So how should employers address this latest development? Should these be treated the same as the other COVID-19 vaccines?
Canadian HR Reporter spoke with Hermie Abraham, owner and principal employment lawyer at Advocation Professional Corporation in Toronto, for some answers.
Q: How should employers treat booster shots for the workplace?
A: “For people who need time to go for a booster shot or need time after a booster shot, employers should manage any requests that employees are making, as they would for any of their other time-away-from-work policies so people can get a shot.
“Whether it’s a mandatory vaccine policy, employers have to follow public health guidance. If it comes to the point that it’s required, the workplace vaccine policy would be updated to essentially require now the three shots rather than the two, and employees can provide confirmation that they’ve received the booster.”
Q: What are the biggest areas of concern for employers?
A: “With any of these mandatory vaccine policies, [it] is really trying to figure out: How important is it for the workplace? Employers can set whatever policy they want to but employers should not be setting policies for the sake of setting policies.
“I could say in my workplace: ‘I’m going to set as a policy that everybody has to wear purple pants’ and I would do completely within my legal right to do so, provided I’m giving notice. If I decide to dismiss anybody, it’s on a without-cause basis because they refuse to wear purple pants. But, at the same time, requiring such a policy wouldn’t make a lot of sense and it would create a distrust or maybe some animosity amongst my employees who think, ‘Why should we have to be forced to dress in a certain way, if it really makes no difference to the work that we’re doing or how we’re working?’ And vaccine policies are exactly the same thing.
“If you have employees who are working remotely, requiring them to be vaccinated does not make good health and safety policy sense unless they’re going to be in a workplace and with people working in close proximity [where] there’s a greater chance of the spread of the virus.”
Q: Should continued employment be a requirement of mandating booster shots?
A: “This depends on the workplace. If you’re in a health-care setting [such as] long-term care, absolutely, because there’s a greater risk with health and safety. So if the booster means there’s less chance that an employee who has a booster can spread COVID or become sick themselves, then making sure a booster is mandatory can be a required part of the policy.
“For the vast majority of workplaces based on the science and public health, I haven’t read anything that tells me that the booster is a requirement for someone to be considered fully vaccinated.”
Recently, employees at the University Health Network in Toronto were denied an injunction seeking to prevent the employer from enforcing its vaccination mandate in the workplace.
Q: What about workers who refuse, what steps should the employer take?
A: “This really depends on the workplace as well, too. If it is long-term care, somebody who’s providing care to people who are at greater risk of dying, having COVID being fatal to them or a place where a spread of COVID would create serious issues, even some manufacturing places where people are in close proximity ... In those circumstances, a worker who refuses can be sanctioned that they’re either going to be put on a paid leave until such time as they get the vaccine or that the organization decides to part company with them.
“The organization would have to determine whether or not the parting is on a without-cause basis, meaning that the employee gets a separation package, or if it’s done on a frustration-of-contract basis, which means that something has happened that it makes it impossible for the contract to be performed.
“But there are ways that you can still work with those people, where they can still deliver the services they are supposed to under the terms of their contracts without the same harmful occupational health and safety act effect in a different industry like healthcare.”
Canadian HR Reporter recently spoke with two employment lawyers for answers to five key questions about vaccines and the workplace.
Q: Should employers offer on-site shots?
A: “As far as places that are requiring employees to be vaccinated, it is good practice and if there’s a way that it can be easily facilitated, that also reduces friction for employees who might not be easily able to get vaccines or might have to travel further to get vaccines or take time away, when they have commitments that don’t make it easy for them to do it.
“If we looked at the template of flu shots, that would be something employers could do to make it easier for employees to comply.”
Nearly three-quarters (73 per cent) of Canadians support having flu shots available in workplaces, finds a 2000 survey by pharmaceutical company Seqirus.
Q: What should HR be doing to manage all these efforts?
A: “HR professionals walk a tightrope between being there for the employees and workers and being that buffer for them, but also essentially being an agent of the employer. HR isn’t your adversary but they’re also not your advocate and so HR plays a really important role in the fact that there is a lot of tension in the workplace as it pertains to vaccines. Having to get vaccinated or not wanting to get vaccinated and having employees just be able to air their grievances, HR can be a great listening board.
“I’ve heard about workplaces where people don’t believe in vaccines and the people who are vaccinated feel like the poor second cousins, and vice versa. And HR plays a very critical role in helping to move over those dynamics and creating an open channel for people to air their grievances or be able to provide suggestions in a safe way.”