Employers have an obligation to ensure a safe workplace for employees. This obligation remains even as Ontario announces that masking mandates will end on March 21, 2022 and mandates are lifted across the country.

Therefore, while restrictions are being lifted, employers should be cautious about removing mask and vaccine mandates, as COVID-19 remains a public health concern. At the same time, mandatory vaccination and masking policies have faced resistance from some employees. This places employers in a difficult position where some employees will be frustrated that policies are being removed, while others will welcome it.

Consequences of removing masking and vaccination requirements

If you remove masking and vaccination requirements, you may be faced with employees refusing to work claiming an unsafe workplace. If an employee refuses work they must promptly report the reasons for their refusal to the employer.

At this stage, you could either resolve the issue by, for example, allowing the employee work from home, if possible. If the matter does not resolve, and the employee insists the workplace is unsafe, the Ministry of Labour (“MOL”) will get involved. They will investigate and make a decision, either ordering changes or not, and the worker will return to work. These investigations can be time consuming and disruptive.

Presently, many employers have already implemented masking and vaccination policies. As COVID-19 does still pose a risk, it may be wise for employers to maintain COVID-19 workplace safety measures. Although some employees may be unhappy with this, they have likely already complied with the policies and will continue to follow them.

For example, if you have a business with 20 employees, all of whom complied with mandatory vaccination and masking requirements without complaint, then it would be practical to keep your mandatory vaccination and masking policies in place, at least until there is broader societal shift away from COVID-19 policies. For example, you could follow the direction of larger firms.

Consequences of maintaining masking and vaccination requirements

On the other hand, you may find that employees are less likely to comply with COVID-19 policies as we all “learn to live with” COVID-19. This means you will need to consider the best response to employees refusing to comply. At the height of COVID-19, many employers took a firm position that non-compliance with mandatory vaccination policies justified termination with cause. This position is still untested in court, but so far it appears decision-makers will consider the context of that specific workplace and policy. If an employee refuses to continue to comply with a mandatory masking or vaccination policy, and you are considering termination, the safest approach is to terminate them without cause.

A word of caution, if you have not yet implemented COVID-19 policies, and you now intend to, you should consider whether it is truly necessary to ensure workplace health and safety. The justification for employers unilaterally implementing these policies diminishes with the risk posed by COVID-19, and with it the justification for terminating an employee with cause.

Key takeaways as we learn to live with COVID-19

In this case, timing and context is an important consideration. When COVID-19 first hit, federal and provincial governments enacted masking, and vaccination mandates. Keeping an eye on government responses will assist you in determining when, if ever, you should remove your COVID-19 policies.

However, as we have seen, COVID-19 ebbs and flows. Accordingly, while it may be safe to remove all COVID-19 policies this summer, that may not be the case next winter. Therefore, you may wish to keep your COVID-19 policies in place but add some flexibility. Moving forward, you may wish to revise your COVID-19 policies as follows:

1. Make masking requirements discretionary;
2. Make vaccination requirements discretionary;
3. Require that all new employees be vaccinated; and
4. Require that all new employees explicitly agree to the COVID-19 policies in their employment agreement.

Workplaces are finally opening back up. As we breathe a collective sigh of relief, this next step also poses challenges for employers. We have put together some answers in response to frequently asked employer questions.

#1: What happens when the mask mandate lifts in Ontario? Can I keep one in place?

If Ontario lifts the mandatory mask mandate, a mandatory mask workplace policy would be more stringent than what the province requires. This is fine, but employers must be careful when considering what to do if an employee refuses to follow the policy.

Some employees will have genuine reasons for refusing to wear a mask, for example, if they cannot wear a mask for a reason covered by Ontario’s Human Rights Code (“Code”). If this is the case, you must make a good faith effort to accommodate them. Keep in mind, however, that the requirement to wear a mask may be a reasonable and bona fide requirement for health and safety that employees must follow. If so, and if accommodation causes you undue hardship, termination may be appropriate.

Other employees may refuse because they do not believe in masks, lockdowns, or vaccinations. This is not protected by the Code, and it is likely appropriate in this situation to terminate an employee who refuses to wear a mask. We caution employers when doing so because, while possible that refusing to wear a mask is grounds for termination for cause, it remains undetermined by a court. Accordingly, termination without cause is the more prudent approach.

 

#2: What happens if one or more employees are not comfortable with no COVID-19 restrictions?

The Occupational Health and Safety Act (“OHSA”) requires that employers protect their workers. The OHSA also gives employees the right to refuse work that they believe is unsafe. Employers should ensure that they have taken all reasonable precautions to create a safe workplace. If they have done so, it is unlikely that an employee can reasonably refuse to work.

That said, to maintain positive relationships with employees, employers may wish to create a remote work policy. A remote work policy would allow employers to accommodate those employees who are concerned with a “no restrictions” workplace. A good remote work policy should set out the employer’s right to recall employees and productivity expectations. For instance, employers may want to ensure that employees track hours of work and regularly check in with supervisors.

 

#3: What happens if an employee refuses to get a COVID Vaccine?

Many employers have implemented vaccination policies, both mandatory and incentive based. Ontario recently announced that COVID-19 vaccination policies are mandatory for high-risk settings. Ontario has issued a directive mandating hospitals and home and community care service providers and ambulance service providers to have vaccination policies. The vaccination policies must be effective no later than September 7, 2021, and must at least require individuals to provide proof of one of three things:

• Full vaccination against COVID-19;
• A medical reason for not being vaccinated against COVID-19; or
• Completion of a COVID-19 vaccination educational

If proof of vaccination is not provided, individuals will be required to undertake regular testing. Vaccination policies will also be implemented for employees in:

• Schools and child-care;
• Post-secondary institutions;
• Women’s shelters; and
• Group

For schools and child-care, Ontario intends to introduce a vaccination disclosure policy for all employees, with rapid testing requirements for unimmunized staff.

If an employer requires employees to get a COVID-19 vaccine, and the employee refuses to do so, the employer may wish to terminate them. Before doing so, you should consider if the employee’s refusal is premised upon a protected ground under the Code. If their refusal is protected by the Code, you must accommodate them unless it creates undue hardship for you.

Another crucial question is if you can terminate for cause or only without cause. Termination for cause is likely only appropriate in limited situations, for example, where employees are working with individuals who are immune compromised.

Generally, employers will need to rely on without cause terminations when dealing with an employee who refuses to get vaccinated. Employers always maintain the right to terminate an employee without cause, so long as they provide the employee with their contractual entitlements, or, if applicable, their common law entitlements. However, proceed with caution, as many employment contracts in Ontario now have invalid termination provisions due to the 2020 Ontario Court of Appeal decision in Waksdale v. Swegon North America Inc. We strongly recommend that employers update their employment agreements if they have not done so within the past year.

 

#4: Can I require customers to be fully vaccinated before entering my business?

Ontario recently announced that it will require people to be fully vaccinated and provide proof of their vaccination for certain businesses and setting starting September 22, 2021. Proof of vaccination will be required to enter the following businesses and settings:

• Restaurants and bars (excluding outdoor patios, as well as delivery and takeout);
• Nightclubs (including outdoor areas of the establishment);
• Meeting and event spaces, such as banquet halls and conference/convention centres;
• Facilities used for sports and fitness activities and personal fitness training, such as gyms, fitness, and recreational facilities except for youth recreational sport;
• Sporting events;
• Casinos, bingo halls and gaming establishments;
• Concerts, music festivals, theatres and cinemas;
• Strip clubs, bathhouses, and sex clubs; and
• Racing venues (e.g., horse racing).

Accordingly, if your business or workplace falls into one of the categories above, your customers must

be fully vaccinated and provide proof of vaccination before entering your business or workplace. If not, your business or workplace is permitted to refuse service to individuals who are unvaccinated, subject to an important caveat: businesses in Ontario are subject to the Code, and therefore cannot refuse service on discriminatory grounds protected by the Code. While vaccination status is not a protected ground, the reason someone is unvaccinated could be, for example, if they have a disability preventing them from being vaccinated. If so, refusing them service could be viewed as discrimination under the Code.

Full vaccination and proof of vaccination are not required in settings where people receive medical care, food from grocery stores, medical supplies, and the like.

 

#5: What happens if an employee refuses to share their vaccination status?

As discussed earlier, employers have a duty to provide a safe workplace. An employee’s vaccination status is directly relevant to this duty. However, employers must proceed cautiously to ensure they do not breach an employee’s privacy rights. Employers should limit their inquiry to whether the employee is vaccinated. We recommend that employer’s set this out clearly in their vaccination policy. A more prudent approach might be for employers to state that employee disclosure of their vaccination status is not mandatory, but that the employer has the right to make decisions about the workplace according to disclosed vaccination status.

 

#6: How do I ensure my workplace policies are up to date with provincial guidelines?

Ontario operates a website outlining COVID-19 public health measures and advice. However, this website does not provide the full picture. We encourage you to work closely with an experienced employment and human rights lawyer to not only ensure your workplace policies are up to date with provincial guidelines, but also compliant with applicable human rights legislation, employment standards legislation, and health and safety legislation.

If you need guidance from an experienced employment lawyer, call HUM Law today at (416)214-2329 or email info@thehumlawfirm.ca.

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