Suspension of Federal Vaccination Mandates

As of June 20, 2022, the federal government suspended vaccination requirements in federally regulated transportation sectors and for federal government employees. The federal government maintains it will continue to follow public health advice and reinstate the COVID-19 vaccination requirements if necessary.

However, the federal government announced that it would not introduce regulations to Canada Labour Code that would make vaccination mandatory in all federally regulated workplaces. Had it done so, federally regulated employers would have certainty on this issue moving forward.

Most employers in Ontario are not impacted by this announcement because this change only applies to federally regulated workplaces. Accordingly, these changes do not mean employers should remove or repeal their vaccination policies. For the majority of Ontario employers, the Occupational Health and Safety Act (“OHSA”) outlines the obligation to take every reasonable precaution to protect employees. Moving forward, non-federally regulated employers should base any decision to remove or repeal vaccination policies on their obligations under the OHSA.

How will this impact non-federally regulated businesses?

Ultimately, in non-federally regulated workplaces it remains the employer’s decision whether to remove or repeal mandatory vaccination policies. It is also the responsibility of the employer to establish return to work practices. Some employers, such as the federal government, have indicated that their unvaccinated employees initially placed on an unpaid leave of absence will return to work. Notably, employers that wish to repeal or remove their vaccination policy can later re-introduce it if the COVID-19 situation changes.

If employers wish to keep their mandatory vaccination policies in place, they can do so. However, the federal government’s suspension of vaccine mandates weakens their position regarding unpaid leave of absence or terminations for cause due to non-compliance with their vaccination policy. This is because vaccination is no longer mandated by the federal government and, therefore, their mandatory vaccination policy may be considered unreasonable. This could result in an employee who has been placed on unpaid leave or terminated for cause successfully establishing that they were wrongfully dismissed and are entitled to pay in lieu of notice, among other things.

How will this impact federally regulated businesses?

Federally regulated employers should consult with an experienced employment lawyer to reconsider their COVID-19 vaccination policies in light of the recent changes. When assessing vaccination policies, remember the following:

1. Vaccination policies must continue to assess accommodation requests for medical or religious grounds on a case-by-case basis, and provide evidence that they have adequately engaged in the process by documenting it;
2. Employers that remove or repeal their vaccination policies should ensure they have the flexibility to seamlessly re-establish them if required by law or the changes in the COVID-19 situation;
3. Employers should consider revising their vaccination policy to be a combined vaccination and testing policy. Some employers have implemented vaccination policies where the employee must either get vaccinated or agree to being regularly tested. This less invasive policy is more likely to be consider reasonable; and
4. If appropriate, repeal and remove the vaccination policy, but keep other health and safety measures such as mandatory masking and social distancing in place.