Vaccination Requirements And The Canadian Workplace: Anticipating The Next Big Question Of The Pandemic – Coronavirus (COVID-19) – Canada – Mondaq News Alerts
Whether an employer can require its employees to be
vaccinated against COVID-19 as a condition of continuing employment
is the latest in a series of important legal questions to arise
from the COVID-19 pandemic. While it is already attracting
media interest, the issue of mandatory vaccination has not been
conclusively decided in a judicial context in Canada. It is
therefore likely that workplace COVID-19 vaccination requirements
will be litigated before too long, whether in the courts or –
in unionized workplaces – by arbitrators.
In this post, we look at what the existing authority in Canada
tells us about the legality of mandatory vaccination policies,
which has long been a controversial subject. The balance of
existing authority suggests that the enforceability of such
policies is partly dependent on the workplace in which they are
applied:
In healthcare
(hospitals and long-term care homes) it is likely that an
appropriately drafted and implemented mandatory COVID-19
vaccination policy would be upheld as both necessary and
reasonable.
In other “congregate
work settings” where there is a demonstrated and
heightened safety risk from COVID-19 transmission (e.g., meat
packing plants, warehouses, construction), such a policy may also
be upheld.
In other contexts,
where the existing evidence of the risk of transmission is less
clear and may be mitigated by workplace measures less intrusive
than vaccination (such as masks, physical barriers/distance, and
testing), or by working from home, the enforceability of a
mandatory vaccination policy is similarly less clear.
In the unionized context, the Supreme Court of Canada has
endorsed a balancing-of-interests approach to the unilateral
exercise of management rights to ensure reasonable safety in the
workplace.1 Accordingly, a mandatory
vaccination policy may be considered both necessary and reasonable
if the need for the rule outweighs the harmful impact on employee
rights. For any employer considering the implementation of a
mandatory COVID-19 vaccination policy, it would be crucial to
design a policy that provides employees with a reasonable,
non-disciplinary alternative to vaccination, such as working from
home (where possible) or an unpaid leave of absence (where working
from home is not possible), and to accommodate employees who cannot
get vaccinated for medical reasons or because of protected grounds
for discrimination under human rights legislation. A mandatory
COVID-19 vaccination policy should not be a blanket policy. A
policy that distinguishes between high risk and lower risk roles,
akin to safety-sensitive and non-safety-sensitive roles in the drug
and alcohol testing context, would likely enhance a policy’s
justification.
It should be noted that certain public sector employers have
statutory authority to require their employees to be vaccinated
against specific diseases.2 Special legislation can also be
applicable to supplement employee rights – Ontario, for
example, has adopted legislation that provides for job-protected
leaves of absence during the pandemic.3 However, private
sector employers have no statutory authority at this time to
require their employees to get vaccinated against COVID-19, and
provincial governments have so far
indicated that COVID-19 vaccination will not be made
mandatory.
In this post, we look at the existing law on mandatory workplace
vaccination in the common law provinces. In a future post, we will
look at some of the emerging decisions on COVID 19-related testing
and screening policies.
Mandatory Workplace Vaccination: Past Rulings
Provincial occupational health and safety (OHS) legislation
stipulates that employers have a duty to protect employees from
work-related illness or injury.4 To fulfill this duty, some
hospital employers have previously introduced mandatory vaccination
policies to limit the spread of influenza in the workplace, with
most (but not all) such policies upheld.
The limits to an employer’s ability to implement mandatory
flu vaccination policies have generally only been addressed in
arbitration cases in the unionized context, thus the applicable
collective agreement will often have an impact on what is
permissible in the specific circumstances. In addition, given that
arbitration decisions are not binding on other arbitrators or
courts, it is uncertain how much weight these past cases will have
on the question of whether employers can implement a mandatory
COVID-19 vaccination policy, especially in a non-union setting.
Moreover, a vaccination requirement imposed as a result of an
ongoing pandemic or an active outbreak of a highly infectious
disease is likely to be treated differently from one imposed on
employees in ordinary circumstances.
Where an employer unilaterally imposes a policy in a union
setting, the criteria to determine whether the policy is reasonable
and enforceable are as follows (the KVP factors):
It (the policy) must not be
unreasonable.
It must not be inconsistent with the
terms of employment for non-unionized employees or collective
agreement for unionized employees.
It must be clear and
unequivocal.
It must be brought to the attention
of the employee affected before the employer can act on it.
The employee concerned must have been
notified that a breach of such rule could result in their discharge
if the rule is used as a foundation for discharge.
Such rule should have been
consistently enforced by the employer from the time it was
introduced.5
Employers bear the burden to justify that a unilaterally
implemented policy is reasonable on health and safety grounds.6
Generally, the most significant hurdle for employers is
demonstrating whether the policy is reasonable, as this inquiry
goes to the root of why the policy is required and is balanced
against employee rights. If the need for the policy is greater than
the harmful impact on employees, the policy will be reasonable.
While labour arbitrators in Alberta and British Columbia have
upheld mandatory vaccinate-or-mask policies (VOM policies) imposed
by hospital employers to combat seasonal influenza, arbitration
decisions in Ontario have gone the other way.7
In St Michael’s Hospital, the Ontario Nurses
Association challenged a VOM policy that had been put in place for
flu season by a Toronto hospital. The hospital was one of a small
number (less than 10%) of Ontario hospitals at that time with a VOM
policy. The arbitrator followed an earlier Ontario decision and
struck down the VOM policy as being unreasonable because there was
insufficient evidence the policy protected the workers and patients
from harm:
131] … Ultimately, I agree with Arbitrator Hayes [in Sault
Ste Marie]: “There is scant scientific evidence
concerning asymptomatic transmission, and, also, scant scientific
evidence of the use of masks in reducing the transmission of the
virus to patients” (at para. 329). …
132] One
day, an influenza vaccine like MMR may be developed, one that is
close to 100% effective. To paraphrase Dr. Gardam, if a better
vaccine and more robust literature about influenza-specific patient
outcomes were available, the entire matter might be appropriately
revisited. For the time being, however, the case for the VOM policy
fails and the grievances [are] allowed. I find St. Michael’s
VOM policy contrary to the collective agreement and
unreasonable.
Among the issues the labour arbitrator took with the VOM policy
was that it pressured employees to get vaccinations or face the
stigma associated with wearing a mask and being identified as a
non-vaccinated employee. Given that we now have significant
evidence of the effectiveness of masks in reducing transmission of
COVID-19, evidence of asymptomatic transmission, and vaccines
reported to be highly effective, it is reasonable to conclude that
the decision in St Michael’s Hospital would be given
little or no weight in the consideration of a mandatory requirement
for COVID-19 vaccination.
Recent arbitration decisions on COVID-19 screening or testing
policies (which we will be addressing in a follow-up blog post),
also suggest that the safety risks posed by COVID-19 will in
appropriate circumstances justify reasonable intrusions on employee
rights.8
Non-Union Employees
In the non-union setting, employers will need to be concerned
with three issues: constructive dismissal, human rights and privacy
legislation.
First, if the mandatory vaccination policy results in a
unilateral substantial change to a fundamental term of employment,
an affected employee would be entitled to take the position that
they have been constructively dismissed. In such circumstances, the
employer could be exposed to significant termination costs
depending on whether the employee has an enforceable contractual
termination provision or is entitled to reasonable notice at common
law. A mandatory vaccination policy may be more likely to result in
a constructive dismissal where the repercussions for the employee
who has decided not to be vaccinated (or refuses to disclose
whether they have been vaccinated) are termination for cause or a
forced leave of absence without pay. The risk of constructive
dismissal will be lessened where employers obtain the
employee’s consent with fresh consideration in advance of
implementing a mandatory vaccination policy or where the employer
has given reasonable advance notice of the unilateral
implementation of such a policy (generally considered to be the
same amount of notice the employer would need to give to terminate
employment without cause).
Second, a mandatory COVID-19 vaccination policy may be found
discriminatory if it does not include exemptions for protected
grounds, such as religious reasons or medical reasons (i.e.,
immunocompromised persons or those allergic to the vaccine). That
said, in some circumstances an employer may be able to defend an
otherwise discriminatory mandatory vaccination policy on the basis
that it is a bona fide occupational requirement. However,
the employer would need to show the purpose of the policy is
rationally connected to the employee’s performance of their
job, it was adopted in an honest and good faith belief that it is
necessary to fulfil that work-related purpose, and that the policy
is reasonably necessary to accomplish such purpose. Part of this
analysis looks at whether a policy can achieve its purpose through
less discriminatory means. For example, a policy may be
unreasonable and determined not to be a bona fide
occupational requirement if it results in an employee’s
termination for cause when alternative measures may suffice, such
as physical distancing, use of protective gear, barriers or working
from home.
Third, employers regulated by privacy legislation must ensure
they are only collecting, using or disclosing personal information
(such as whether an individual has been vaccinated) for reasonable
purposes. It may not be reasonable to request from all employees
whether they have been vaccinated if some employees are in
positions that will not require mandatory vaccination (i.e.,
full-time work from home).
Conclusion
Back in 2010, a case came before an arbitrator on the
implementation of a vaccination program by a public sector employer
during the H1N1 influenza pandemic.9 The case was dismissed because
that pandemic had come to an end before the appeal hearing. The
union argued it should be heard anyway, as H1N1 was not the first
pandemic and would not be the last. Nevertheless, the arbitrator
concluded the issue had been rendered moot, and the employer’s
obligation to vaccinate, if any, must be considered in context, and
that a decision on the merits “would not be useful for future
potential pandemics which would present their own unique
circumstances and issues.”
COVID-19 has certainly presented its own unique circumstances
and issues, and a number of labour arbitration cases have already
been decided, with more to come, no doubt, including the important
question of whether an employer can adopt and implement a policy
that requires its employees to be vaccinated against COVID-19.
Given the very limited availability of COVID-19 vaccines in the
early stages of the vaccination campaign, it is likely premature
for most employers to implement a mandatory COVID-19 vaccination
policy at this time. However, once vaccines become more widely
available, and provincial restrictions less onerous, the need for a
properly drafted and implemented policy for some employers will
become more pressing. Early movers can expect challenges to
mandatory vaccination policies, particularly in the unionized
context, which will make it even more important to have a carefully
drafted policy.
Footnotes
1. Irving Pulp & Paper Ltd. v CEP, 2013 SCC 34 at para.
4.
2. For
example, paramedics and other medical workers under the Ambulance Act (Ontario), and certain childcare workers
under the Child Care and Early Years Act, 2014
(Ontario).
3. Infectious Disease Emergency Leave, O Reg
228/20.
4. Occupational Health and Safety Act, RSO 1990 c O.1; Occupational Health and Safety Act, RSA 2000 c O-2; Workers Compensation Act, RSBC 1196, c 492.
5. Lumber & Sawmill Workers’ Union, Local 2537 v. KVP
Co., 1965 CarswellOnt 618 (Ont. Arb.) at para 34, paraphrased
here.
7. Chinook Health Region v UNA, Local 120, 2002 CarswellAlta
1847 (Alta. Arb.); Interior Health Authority v BCNU, 2006
CarswellBC 3377 (BC Arb.); Re St Michael’s Hospital and
ONA, 2018 CarswellOnt 14889 (Ont. Arb.); Re Sault Area
Hospital and Ontario Hospital Assn. (Vaccinate or Mask), 2015
CarswellOnt 13915 (Ont. Arb.).
8. See
for example, Christian Labour Association of Canada v Caressant
Care Nursing & Retirement Homes, 2020 CarswellOnt 18430
(Ont. Arb.).
9. Ontario Public Service Employees Union v. Ontario (Community
Safety and Correctional Services), 2010 CanLII 52643
(Grievance Settlement Board).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Skinstitut Holiday Gift Kits take the stress out of gifting
Toronto, October 31, 2024 – Beauty gifts are at the top of holiday wish lists this year, and Laser Clinics Canada, a leader in advanced beauty treatments and skincare, is taking the pressure out of seasonal shopping. Today, Laser Clincs Canada announces the arrival of its 2024 Holiday Gift Kits, courtesy of Skinstitut, the exclusive skincare line of Laser Clinics Group.
In time for the busy shopping season, the limited-edition Holiday Gifts Kits are available in Laser Clinics locations in the GTA and Ottawa. Clinics are conveniently located in popular shopping centers, including Hillcrest Mall, Square One, CF Sherway Gardens, Scarborough Town Centre, Rideau Centre, Union Station and CF Markville. These limited-edition Kits are available on a first come, first served basis.
“These kits combine our best-selling products, bundled to address the most relevant skin concerns we’re seeing among our clients,” says Christina Ho, Senior Brand & LAM Manager at Laser Clinics Canada. “With several price points available, the kits offer excellent value and suit a variety of gift-giving needs, from those new to cosmeceuticals to those looking to level up their skincare routine. What’s more, these kits are priced with a savings of up to 33 per cent so gift givers can save during the holiday season.
There are two kits to select from, each designed to address key skin concerns and each with a unique theme — Brightening Basics and Hydration Heroes.
Brightening Basics is a mix of everyday essentials for glowing skin for all skin types. The bundle comes in a sleek pink, reusable case and includes three full-sized products: 200ml gentle cleanser, 50ml Moisture Defence (normal skin) and 30ml1% Hyaluronic Complex Serum. The Brightening Basics kit is available at $129, a saving of 33 per cent.
Hydration Heroes is a mix of hydration essentials and active heroes that cater to a wide variety of clients. A perfect stocking stuffer, this bundle includes four deluxe products: Moisture 15 15 ml Defence for normal skin, 10 ml 1% Hyaluronic Complex Serum, 10 ml Retinol Serum and 50 ml Expert Squalane Cleansing Oil. The kit retails at $59.
In addition to the 2024 Holiday Gifts Kits, gift givers can easily add a Laser Clinic Canada gift card to the mix. Offering flexibility, recipients can choose from a wide range of treatments offered by Laser Clinics Canada, or they can expand their collection of exclusive Skinstitut products.
Brightening Basics 2024 Holiday Gift Kit by Skinstitut, available exclusively at Laser Clincs Canada clinics and online at skinstitut.ca.
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LONDON (AP) — Most people have accumulated a pile of data — selfies, emails, videos and more — on their social media and digital accounts over their lifetimes. What happens to it when we die?
It’s wise to draft a will spelling out who inherits your physical assets after you’re gone, but don’t forget to take care of your digital estate too. Friends and family might treasure files and posts you’ve left behind, but they could get lost in digital purgatory after you pass away unless you take some simple steps.
Here’s how you can prepare your digital life for your survivors:
Apple
The iPhone maker lets you nominate a “ legacy contact ” who can access your Apple account’s data after you die. The company says it’s a secure way to give trusted people access to photos, files and messages. To set it up you’ll need an Apple device with a fairly recent operating system — iPhones and iPads need iOS or iPadOS 15.2 and MacBooks needs macOS Monterey 12.1.
For iPhones, go to settings, tap Sign-in & Security and then Legacy Contact. You can name one or more people, and they don’t need an Apple ID or device.
You’ll have to share an access key with your contact. It can be a digital version sent electronically, or you can print a copy or save it as a screenshot or PDF.
Take note that there are some types of files you won’t be able to pass on — including digital rights-protected music, movies and passwords stored in Apple’s password manager. Legacy contacts can only access a deceased user’s account for three years before Apple deletes the account.
Google
Google takes a different approach with its Inactive Account Manager, which allows you to share your data with someone if it notices that you’ve stopped using your account.
When setting it up, you need to decide how long Google should wait — from three to 18 months — before considering your account inactive. Once that time is up, Google can notify up to 10 people.
You can write a message informing them you’ve stopped using the account, and, optionally, include a link to download your data. You can choose what types of data they can access — including emails, photos, calendar entries and YouTube videos.
There’s also an option to automatically delete your account after three months of inactivity, so your contacts will have to download any data before that deadline.
Facebook and Instagram
Some social media platforms can preserve accounts for people who have died so that friends and family can honor their memories.
When users of Facebook or Instagram die, parent company Meta says it can memorialize the account if it gets a “valid request” from a friend or family member. Requests can be submitted through an online form.
The social media company strongly recommends Facebook users add a legacy contact to look after their memorial accounts. Legacy contacts can do things like respond to new friend requests and update pinned posts, but they can’t read private messages or remove or alter previous posts. You can only choose one person, who also has to have a Facebook account.
You can also ask Facebook or Instagram to delete a deceased user’s account if you’re a close family member or an executor. You’ll need to send in documents like a death certificate.
TikTok
The video-sharing platform says that if a user has died, people can submit a request to memorialize the account through the settings menu. Go to the Report a Problem section, then Account and profile, then Manage account, where you can report a deceased user.
Once an account has been memorialized, it will be labeled “Remembering.” No one will be able to log into the account, which prevents anyone from editing the profile or using the account to post new content or send messages.
X
It’s not possible to nominate a legacy contact on Elon Musk’s social media site. But family members or an authorized person can submit a request to deactivate a deceased user’s account.
Passwords
Besides the major online services, you’ll probably have dozens if not hundreds of other digital accounts that your survivors might need to access. You could just write all your login credentials down in a notebook and put it somewhere safe. But making a physical copy presents its own vulnerabilities. What if you lose track of it? What if someone finds it?
Instead, consider a password manager that has an emergency access feature. Password managers are digital vaults that you can use to store all your credentials. Some, like Keeper,Bitwarden and NordPass, allow users to nominate one or more trusted contacts who can access their keys in case of an emergency such as a death.
But there are a few catches: Those contacts also need to use the same password manager and you might have to pay for the service.
___
Is there a tech challenge you need help figuring out? Write to us at onetechtip@ap.org with your questions.
The Canadian Paediatric Society says doctors should regularly screen children for reading difficulties and dyslexia, calling low literacy a “serious public health concern” that can increase the risk of other problems including anxiety, low self-esteem and behavioural issues, with lifelong consequences.
New guidance issued Wednesday says family doctors, nurses, pediatricians and other medical professionals who care for school-aged kids are in a unique position to help struggling readers access educational and specialty supports, noting that identifying problems early couldhelp kids sooner — when it’s more effective — as well as reveal other possible learning or developmental issues.
The 10 recommendations include regular screening for kids aged four to seven, especially if they belong to groups at higher risk of low literacy, including newcomers to Canada, racialized Canadians and Indigenous Peoples. The society says this can be done in a two-to-three-minute office-based assessment.
Other tips encourage doctors to look for conditions often seen among poor readers such as attention-deficit hyperactivity disorder; to advocate for early literacy training for pediatric and family medicine residents; to liaise with schools on behalf of families seeking help; and to push provincial and territorial education ministries to integrate evidence-based phonics instruction into curriculums, starting in kindergarten.
Dr. Scott McLeod, one of the authors and chair of the society’s mental health and developmental disabilities committee, said a key goal is to catch kids who may be falling through the cracks and to better connect families to resources, including quicker targeted help from schools.
“Collaboration in this area is so key because we need to move away from the silos of: everything educational must exist within the educational portfolio,” McLeod said in an interview from Calgary, where he is a developmental pediatrician at Alberta Children’s Hospital.
“Reading, yes, it’s education, but it’s also health because we know that literacy impacts health. So I think that a statement like this opens the window to say: Yes, parents can come to their health-care provider to get advice, get recommendations, hopefully start a collaboration with school teachers.”
McLeod noted that pediatricians already look for signs of low literacy in young children by way of a commonly used tool known as the Rourke Baby Record, which offers a checklist of key topics, such as nutrition and developmental benchmarks, to cover in a well-child appointment.
But he said questions about reading could be “a standing item” in checkups and he hoped the society’s statement to medical professionals who care for children “enhances their confidence in being a strong advocate for the child” while spurring partnerships with others involved in a child’s life such as teachers and psychologists.
The guidance said pediatricians also play a key role in detecting and monitoring conditions that often coexist with difficulty reading such as attention-deficit hyperactivity disorder, but McLeod noted that getting such specific diagnoses typically involves a referral to a specialist, during which time a child continues to struggle.
He also acknowledged that some schools can be slow to act without a specific diagnosis from a specialist, and even then a child may end up on a wait list for school interventions.
“Evidence-based reading instruction shouldn’t have to wait for some of that access to specialized assessments to occur,” he said.
“My hope is that (by) having an existing statement or document written by the Canadian Paediatric Society … we’re able to skip a few steps or have some of the early interventions present,” he said.
McLeod added that obtaining specific assessments from medical specialists is “definitely beneficial and advantageous” to know where a child is at, “but having that sort of clear, thorough assessment shouldn’t be a barrier to intervention starting.”
McLeod said the society was partly spurred to act by 2022’s “Right to Read Inquiry Report” from the Ontario Human Rights Commission, which made 157 recommendations to address inequities related to reading instruction in that province.
He called the new guidelines “a big reminder” to pediatric providers, family doctors, school teachers and psychologists of the importance of literacy.
“Early identification of reading difficulty can truly change the trajectory of a child’s life.”
This report by The Canadian Press was first published Oct. 23, 2024.
