As BC continues to battle the 4th wave of the global pandemic, new issues surrounding vaccination status continue to arise. These issues can often be quite challenging for employers to fully understand. Indeed, one of the most critical issue facing employers today is the vaccination status of staff. Currently there is no provincial mandate for mandatory vaccination of staff outside of the health care setting. It is up to the individual business to decide on their own policy.
While it is widely accepted that vaccination against COVID-19 is the most effective way of combating this virus, not everyone is vaccinated. Recent public health orders, notably, the provincial vaccination passport, will offer business a way to confirm the vaccination status of their customers, but questions about staff still linger.
How can an employer navigate this situation while balancing health & safety, human rights, privacy and other related legal requirements? While certainly challenging, it is not impossible.
First and foremost, it is critical that employers understand their rights and responsibilities on this issue. Employers have a legal responsibility to provide a safe workplace for staff. On the other hand, employers have obligations based on human rights, employment standards and common law considerations. Furthermore, while vaccinations are strongly encouraged by public health, there is no public mandate for vaccination or no current regulation requiring this except in some sectors.
Employers are legally able to create and implement a workplace vaccination policy. There are a few good examples in the tourism and hospitality industry of businesses that have been exemplary in this area. While creating such a policy, businesses need to carefully assess the risks involved, insuring that the legal and other practical considerations are addressed. Prior to creating the policy, employers should be well-versed with potential consequences that they may incur in case of a legal challenge, and should seek legal opinion where needed.
Some important things to consider when developing a vaccination policy:
Purpose: Employers should outline their reasons for creating a vaccine policy. This could include any risk assessment they have carried out in the workplace, other measures they have employed to address health & safety in the workplace, and their reason for believing a vaccination policy is needed. (e.g. fourth wave being driven by the unvaccinated; health officer’s strong recommendations; inability to offer remote work; customers demanding staff are vaccinated etc.)
One thing worth noting here though is while attending a concert or eating out may be seen as a non-essential activity, employment is not. Employers must therefore explain their rationale for creating this policy.
Process: The employer should describe how this policy will be implemented. For instance, what will be accepted as proof of vaccination, who will check this, who they should contact if there are questions, what information will be stored (privacy considerations), and any accommodation that will be offered.
Consequence: Employers need to clearly outline what the consequences will be if an employee does not adhere to the policy. Possible consequences could be:
- Remote work only (if that is a possibility)
- Regular testing (employer will need to identify/provide testing options)
- Restricting area of work (e.g. working alone, doing jobs that do not requiring interaction with others)
- Additional PPE/other measures (e.g. using a face shield, physical distancing)
- Termination (would notice be given)
Furthermore, employers must be mindful of consequences for them if an employee chooses to challenge any of the requirements under the policy. These could range from staff attrition due to the policy being unpopular, to legal challenges for wrongful dismissal or discrimination if termination is involved.
Accommodation: Human rights considerations require that employers do not “refuse to employ or refuse to continue to employ a person” based on any protected grounds. In this case, employees who choose not get vaccinated because of health reasons or because of religious beliefs may need to be accommodated. However, recent accounts from health specialists indicate that exemptions based on existing health conditions are exceedingly rare.
Communication: Employers must communicate the elements of the plan to staff immediately and regularly. The onus is on the employer to be sure that the policy is understood by all and what are the actions an employee or employer can take to continue to insure workplace safety. The employer would need to advice what evidence would be required to request accommodation based on any of the protected grounds in the human rights code.
While public sentiment has largely shifted in recent weeks to being more favourable towards restrictive workplace policies related to vaccines, and mandatory vaccine requirements are increasingly being adopted by many businesses (even in some unions), employers should consider the realities of their own businesses, and follow proper procedures if they decide to implement a vaccine policy. The issue of vaccinations continues to remain a divisive one, in the workplace and outside of it, and due care must be exercised while addressing this complex challenge. If you are looking for additional resources or want to connect with someone on our health and safety team, please reach out today.
Employer Toolkit: COVID-19 Vaccinations in the Workplace – REVISED
Get practical, up-to-date information, resources and downloadable tools to help answer your questions related to COVID-19 vaccinations in the workplace. Prepared by go2HR, the toolkit focused on: the new BC Vaccination passport, 8 Considerations to help employers determine whether or not they should have a mandatory vaccination policy, Vaccination policy best-practices from tourism and hospitality employers, new rapid testing supports for employers, and more. Download the toolkit today!
- Proof of vaccination information for businesses
- BC’s Office of the Human Rights Commissioner Releases “Proof of Vaccination” Guidance
- COVID-19 Vaccination Workplace Policy
- Mandatory vaccines in the Workplace
- Is refusing a vaccine considered a frustration of contract? | Canadian HR Reporter
- BC’s Restart: A plan to bring us back together – Province of British Columbia
- Province-Wide Restrictions – BC
- BC Employment Standards – COVID-19 Paid Vaccination Leave
- Safe Screen BC – COVID-19 Rapid Testing Support for Employers
- How to get vaccinated for COVID-19
- DBC Proof of Vaccination Cards – Messaging Guidance for BC’s Tourism Industry – Sept92021
- Access Your BC Vaccination Card
- Scripts: Responding to Difficult Guest Situations during a Pandemic – go2HR
- BC’s Hub for Workplace Mental Health – Tourism & Hospitality
- Here to Help BC
- Anxiety Canada
- Crisis Centre BC
- Messaging Guidance for BC’s Tourism Industry – DBC
- 310 Mental Health Support: 310-6789 (no area code needed)
Posters for Businesses:
- Proof of Vaccination Information for Businesses – (gov.bc.ca)
- Proof of Vaccination Required Poster (gov.bc.ca)
- Proof of Vaccination Poster (gov.bc.ca)
- How to Check a Vaccine Card Poster (gov.bc.ca)
Find a vaccination drop-in clinic:
This page is being updated on an ongoing bases as new information regarding vaccinations becomes available.
Should you have any questions about vaccinations or need additional HR support, please feel free to contact us: HR@go2hr.ca