Pandemic restrictions lifting in the workplace will be joyous for some, and anxiety-inducing for others. Our resident legal expert Jessyca Greenwood, of Spring Law, gives us some things to consider as workplaces open up.
Spring is coming, I can almost imagine sitting on a patio again, and things are opening up. Governments are lifting the bans around vaccine passports, and mandatory masking will be removed as a requirement as of March 21st, 2022, although individual establishments can implement their own restrictions if they feel it is necessary.
There has been controversy on social media and in the community about whether businesses should be able to enforce their own restrictions, and whether those restrictions are justified. There are competing interests at play, and a lot of incentive for businesses and employers to do everything they can to keep people safe.
On the one hand, businesses don’t want their staff getting sick, or the PR nightmare of a customer becoming ill after patronizing the establishment. It is a double-edged sword and a fight without a winner.
For employers, those who previously rolled out vaccination policies may be wondering what these wider government changes mean for their own workplace policies.
Are Vaccination Policies Necessary?
Any time an employer imposes a mandatory policy it must be because it is necessary in the circumstances. Given that government protocols are changing, this measure may no longer be justified. It depends on the nature of your workplace and rationale for imposing the policy. Even the mandatory employee vaccination mandate for long-term care homes – which was legally required – has been lifted.
There is no law stating that an employer cannot have a vaccination mandate or a mandatory masking policy, but courts may be less likely to uphold these as government restrictions and mandates are lifted altogether.
There will certainly be interesting litigation to come for all of the employees who were terminated during the height of mandatory vaccination policies, and what the Courts do with those potential wrongful terminations. If you are an employer with employees on furlough for not being vaccinated, you may want to seek advice about returning those employees to work.
How do employees feel?
Some employees may agree 100% with mandatory vaccination policies and masking and want every safety measure possible. Others may disagree 100% that employers should be allowed to make such rules. No topic has been as polarizing or caused as much social dialogue in the last few years. It is also a topic that touches on a number of legal areas: employee privacy, collection of private personal health information, how that information can be collected, stored and used, and how employers can accommodate employees’ human rights concerns and requests. Employers should document accommodation requests, consider them, and make accommodation arrangements up to the point of undue hardship.
We expect that employers will face challenges from employees on both sides of the political divide on these COVID-19 safety issues. This is especially likely in workplaces where work has been mostly or totally remote during the past two years. Some will feel anxious about a return to in-person work, and this could be intensified if the employer does not require COVID-19 safety policies. At the other end of the spectrum, employees who are less concerned about COVID-19 may feel that it is unfair that the workplace is more restrictive than the local grocery store. Gaining compliance among this group of employees could be an issue.
How will employers strike a happy medium? Here are some things to keep in mind:
- The Occupational Health and Safety Act requires employers to take every precaution reasonable in the circumstances for worker safety – what’s reasonable will vary based on the nature of your business and work environment.
- Balance workplace safety and invasions of employee privacy. While Ontario does not have any specific legislation related to employee private information, common law privacy principles dictate that any invasion be reasonably justified, for a clear purpose etc.
- Expect accommodation requests and know how to approach them – this be especially true for employers requiring employees to come back to the office after a long period of working remotely. Requests for accommodation that are legitimately related to human rights issues must be accommodated up to the point of undue hardship.
If you need assistance with any of these issues contact us for a consultation.