Article is authorized by Matthew Morris, Student-At-Law
As Saskatchewan begins to move on from the COVID-19 pandemic and attempt to return to our normal, everyday lives, employers are faced with a difficult decision. They must decide between continuing to enforce mandatory vaccinations in the workplace, or to remove these restrictions. As of February 14, 2022, the Saskatchewan Government has indicated that The Employers’ COVID-19 Emergency Regulations (The “Regulations”), which provides all non-public employers with the option to require its workers to be fully-vaccinated or to provide a negative COVID-19 test result to the employer at least every 7 days, will no longer be in effect. Furthermore, as of February 28, 2022, the remaining public health orders requiring masks in indoor spaces has ended. Although the public health measures are no longer in effect, COVID-19 remains a serious health risk to businesses and the community. As a result, businesses may wish to administer additional health enforcement policies.
In the absence of the Regulations, an employee may challenge an employers’ continued enforcement of a mandatory vaccination policy, or the implementation of a new mandatory vaccination policy. If the legality of the policy is challenged, the adjudicator must weigh the seriousness of the safety risk in that particular work environment against the intrusiveness of the policy imposed. An adjudicator will consider questions such as:
• Is there a heightened safety risk in that particular workplace?
• Do employees have close contact with vulnerable populations, such as individuals who are immunocompromised?
• Are there less intrusive measures that could be implemented, such as social distancing or masks?
• Does the policy include an option for employees to provide negative test results?
Employers continued enforcement of a mandatory vaccination policy, or implementation of a new mandatory vaccination policy will be required to balance the health, safety, and welfare of its workers with applicable employee privacy and human rights law.
Employers should also be aware that, even though the Regulation will no longer be in effect, they have a general duty to protect the safety of its workforce under Saskatchewan’s occupational health and safety legislation. More specifically, employers have a general duty pursuant to section 3-8 of The Saskatchewan Employment Act, to ensure insofar as reasonably practicable, the health, safety and welfare at work of all the employer’s workers. Depending on the nature of the employer’s business and its employees and customers, it may be essential to the health and safety of the workplace that efforts are made to control the risks of COVID-19 in the workplace.
An employee reluctant to comply with a mandatory vaccination policy may be able to challenge the policy by reasons protected by The Saskatchewan Human Rights Code, 2018 (the “Code”). The employee may claim that they have suffered discrimination caused by the policy based on protected grounds such as disability, religion or creed. The courts are hesitant to permit mandatory policies imposed by businesses when such policies have impacted the protected rights of individuals.
An employee may also attempt to challenge that the unilaterally imposed management policy is unreasonable. The predominant test utilized by Canadian Courts in unionized settings comes from the decision in KVP Co v Lumber & Sawmill Workers’ Union, Local 2537 (Veronneau Grievance), which requires that a policy or rule satisfy the following conditions:
• It must not be inconsistent with the collective agreement
• It must not be unreasonable
• It must be clear and unequivocal
• It must be brought to the attention of employees affected before the company can act on it
• The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge
• Such rule should have been consistently enforced by the company from the time it was introduced.
Employers must be cognizant of the intrusiveness of their policies and the overall benefit such policies may have on the business and its employees. It is important to note that each inquiry is unique and fact specific. Context is extremely important when assessing the reasonableness of any businesses workplace policy that may infringe on the rights on its employees. The authorities on this point are in consensus that in certain situations, where the risk to health and safety is greater, an employer may encroach upon an employee’s rights with a carefully tailored policy.
In Carter v. Canada (Attorney General)¸ the Supreme Court of Canada confirmed that individuals have autonomy in medical decision-making. The Court went on to add that the right of medical self-determination is not vitiated by the fact that serious risks or consequences, including death, may flow from the patient’s decision. This underlying principal would necessarily apply given our present understanding of the efficacy of the available COVID-19 vaccinations and current health risks to the public.
In the Ontario Arbitration decision of Electrical Safety Authority and Power Workers’ Union, the Arbitrator confirmed that employers must weigh the costs and benefits of a mandatory vaccination policy and other less intrusive methods for controlling the spread of the virus in the workplace. The Arbitrator notes that:
71 In workplace settings where the risks are high and there are vulnerable populations (people who are sick or the elderly or children who cannot be vaccinated), then mandatory vaccination policies may not only be reasonable but may also be necessary and required to protect those vulnerable populations.
72 However, in other workplace settings where employees can work remotely and there is no specific problem or significant risk related to an outbreak, infections, or significant interference with the employer’s operations, then a reasonable less intrusive alternative, such as the VVD/T Policy employed prior to October 5, 2021, may be adequate to address the risks.
Ultimately, the Arbitrator held that the Electrical Safety Authority’s decision to enforce a mandatory vaccination policy, given the dynamic nature of COVID-19, did not take into consideration that an alternative policy allowing for masking and testing would adequately address the employers concerns. The Arbitrator added that it would be unjust to discipline or terminate the employment of an employee for failing to be vaccinated, when this was not a requirement of being hired or an agreed upon condition of the employment contract when there is a reasonable alternative.
In line with the conclusion in Electrical Safety Authority and Power Workers’ Union, in Health Employers Assn. of British Columbia and HSA BC (Influenza Control Program Policy), Re, the Arbitrator held that a policy requiring individuals to either be vaccinated annually against influenza or wear a mask during influenza season when in patient care area, was reasonable. The Arbitrator came to this decision by weighing the employer’s interest in the Policy as a patient safety measure against the harm to the privacy interest of the health care workers and applying a proportionality test respecting intrusion.
Mandatory vaccination policies remain a very challenging area of labour and employment law and it remains to be seen how Canadian courts will ultimately rule on the enforcement of such policies given the dynamic nature of COVID-19. Employers must consider the seriousness of the risk of COVID-19 in the workplace and the intrusiveness of the policies imposed.
Employers should be encouraged to seek out legal advice to determine what measures may be necessary to ensure a safe work environment and to assist them in determining the legality of implementing policies for masks or vaccinations.
