Canadian Employers Establish COVID-19 Policies

Large companies across various industries in Canada are setting up their own employee COVID-19 vaccination policies amid a flurry of new federal, provincial and local pronouncements that stop short of requiring vaccines for private-sector workers.

Canada's government announced in August it will require vaccination this fall for the federal workforce—with accommodations or alternative steps, such as testing and screening, for those who can't be vaccinated.

Ontario recently announced it will require people to be fully vaccinated and provide proof before entering certain high-risk indoor settings, including restaurants, bars, nightclubs, fitness centers, conference spaces, casinos, sports venues and concert halls, effective Sept. 22. Exceptions will apply to those with medical exemptions and children younger than 12.

While Ontario has announced these vaccination passport rules for certain private businesses, "those mandates [generally] have not extended to employees," said Trevor Lawson, an attorney with McCarthy Tétrault's labor and employment group in Toronto. However, vaccination mandates have been imposed on the private sector in health care and child care settings.

The government largely allowed individual private-sector employers to implement their own vaccination policies, Lawson said. Several major private-sector employers recently announced policies requiring employees to provide proof that they're fully vaccinated by a particular date, he noted.

"That is the policy that we've seen many employers in Canada announce over the past couple of weeks," Lawson said. He added that some employers are requiring those who can't be vaccinated for valid reasons to continue to work from home.

Canada's five largest banks reportedly have announced employee vaccine mandates, and the Canadian National Railway and Air Canada have made similar moves. Air Canada will not offer testing as an alternative to vaccination and warned that employees not inoculated by Oct. 30, except for those with qualifying valid exemptions, may be placed on unpaid leave or dismissed.

Employers requiring employee vaccinations must make exceptions for those who aren't inoculated for medical or religious reasons, as they are protected under the country's human rights laws, Lawson noted. Employers, however, may ask employees to provide proof of their exemptions, such as a note from a health practitioner or a religious exemption letter from a faith leader, he said.

A Basis for Employer Action

Ontario's vaccine requirements for customers entering a high-risk business could help employers justify requiring vaccines for employees, said Lisa Goodfellow, an attorney with Miller Thomson in Toronto. It would be strange if unvaccinated customers couldn't enter a restaurant but unvaccinated servers could work there, she noted.

While government agencies may not have issued full-fledged vaccine mandates for private-sector employees, various other policies appear to have that effect.

Ontario in August issued a regulation requiring businesses to comply "with any advice, recommendations and instructions" from the public health officer demanding that the business establish and enforce a COVID-19 vaccination policy, Lawson noted.

That same month, Toronto's medical officer strongly recommended local businesses institute a vaccination policy to protect workers and the public from COVID-19, and Toronto Public Health launched a workplace toolkit that includes guidance on developing a vaccination policy.

Peel Public Health, covering a region near Toronto, issued a "strong recommendation" that employers update their workplace safety plans. The agency recommended employers consider promoting COVID-19 vaccines to workers, outline actions for unvaccinated workers as needed and assess whether vaccination may be necessary based on workplace risk. If the employer considers employee vaccination to be necessary, Peel Public Health recommended that business safety policies require proof of vaccination or written proof of the need for a medical exemption, steps to protect unvaccinated employees from infection, and measures to protect employee privacy if vaccine status is required.

While the Peel and Toronto health measures technically are not mandates, "for all practical intents and purposes, it's one and the same" and it could be harmful for employers not to follow them, Lawson said. "We would be advising employers who have operations in those regions that they should be implementing vaccine policy" for employees.

The city of Toronto, meanwhile, has required all of its employees to be fully vaccinated against COVID-19 by Oct. 30. Those qualifying for exemptions under Canada's Human Rights Codes may need to take other steps, such as testing negative for the virus and self-isolating if exposed.

Obligation to Protect Employees

Businesses in nearly the entire Toronto metropolitan area have been advised that they should implement employee vaccination policies, said Goodfellow, noting moves by provincial and local governments to require vaccines for their employees and to encourage private-sector employers to do the same.

Canadian employers are responsible under occupational health and safety law "to take every precaution reasonable in the circumstances to protect the health and safety of their workers," said Goodfellow. "That is one of the key sources that employers would use to justify a policy."

Ontario also now requires high-risk settings such as hospitals, home and community care services, and ambulance agencies to establish COVID-19 vaccination policies for employees, contractors and volunteers, who must either provide proof that they're fully vaccinated, have a medical reason for non-vaccination or complete a vaccination education session. Individuals who do not provide proof of full vaccination against COVID-19 will be required to undertake regular antigen testing. 

The province also said in August that it planned to introduce a vaccination disclosure policy for staff in public and private schools and licensed child care centers, with testing requirements for unvaccinated staff, and to implement vaccination policies for other high-risk settings, such as postsecondary institutions, women's shelters and retirement homes.

Despite all the new policies, Lawson said, no government entity in Canada has mandated that private-sector employers require their employees to get vaccines.

"It would be extremely helpful if government would do that, because it would provide employers with some cover and some protection against employees who push back, but thus far it hasn't occurred," Lawson said.

Dinah Wisenberg Brin is a freelance reporter and writer based in Philadelphia.