What happens with employer vaccine and pandemic policies now that the mandates are being lifted?

By Ben Markusoff

On March 1, 2022, Ontario further eased restrictions by lifting proof of vaccination requirements as well as indoor capacity limits. On March 14, 2022, mandatory vaccination will no longer be required in long-term care homes and unvaccinated workers will no longer have to undergo regular rapid testing, among other things. On March 21, 2022, masks will no longer be required in most settings. The province expects to lift all mask requirements will be lifted on April 27^th. Many businesses welcomed these announcements. However, it has also left businesses wondering how to handle workplace issues, such as vaccination policies and remote work, absent government direction.

Proof of vaccination for patrons

Last year the Ontario government introduced a vaccination passport program requiring that patrons provide proof of vaccination to access certain businesses and settings. Businesses generally supported this approach because it allowed them to ensure a safe workplace for their employees and patrons with clear government support.

Businesses, employees, and patrons alike have expressed concern about Ontario removing the passport program. However, businesses still retain the right to require proof of vaccination if they do not refuse service on discriminatory grounds under Ontario’s Human Rights Code (“Code”). Vaccination status is not a protected ground, but the reason someone is unvaccinated, for example due to a medical disability, could be a protected ground. While some patrons may attempt to make this claim, the Ontario Human Rights Committee has stated these exemptions are few and far between.

Mandatory vaccination and masking policies

The Occupational Health and Safety Act (“OHSA”) requires that employers protect their employees. To satisfy this obligation, many employers introduced mandatory vaccination policies, and required employees to wear masks.

Again, there is nothing preventing employers from keeping a mandatory vaccination policy in place absent a government mandate to do so. However, you may want to consider the following when drafting and implementing mandatory vaccination in the workplace:

1. Ensure your COVID-19 vaccination policy clearly lays out that employees will be required to get boosters;
2. Ensure all new employment agreements permit temporary layoffs and explicitly state that employees must comply with the COVID-19 vaccination policy; and
3. Require new employees to disclose their vaccination status before offering them a position; and make any offer contingent upon them explicitly agreeing to the terms of the vaccination policy.

A court has not yet determined if employers are permitted to terminate employees with cause due to non-compliance with a mandatory vaccination policy. Therefore, while employers may be permitted to terminate employees with cause, we generally recommend employers terminate employees without cause and require them to sign a release.  Most employers in Ontario retain the right to terminate an employee without cause, generally so long as they provide reasonable notice of termination. This approach will help to avoid litigation and higher legal costs.

You should also consider 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 method head off wrongful dismissal claims because anti-vaccination employees may be more likely to agree to testing, and you will not be put in the difficult situation of terminating unvaccinated employees. Further, decisions in the unionized workplaces have suggested that a combined policy is more likely to be found to be reasonable.

In addition, employers can continue to require employees to wear a mask while in the workplace.

However, act cautiously if you have not already introduced mandatory vaccination and masking policies. If the risk posed by COVID-19 wanes, the justification for unilaterally introducing a new term of employment, in this case a mandatory vaccination or masking policy, becomes tenuous.

Remote work policies

Over the past two years employers have formalized the necessity for remote work into remote work policies.

Employers can generally require their employees to go back to the workplace, absent a Code protected ground, or if their employment agreement states otherwise.

However, moving forward, many employers are considering whether it is beneficial to recall all employees to the workplace or implement a hybrid or fully remote workplace model. Employers and employees alike may wish to benefit from a hybrid remote work model, or fully remote work model. For employers, remote work will cut down on significant costs related to office space. For employees, it will offer flexibility and saving on commuting time.

If you have not already done so and intend to continue operating a hybrid or fully remote business, we strongly recommend you formalize this arrangement through a carefully drafted remote work policy. Such policies should anticipate how remote work environments address issues of discrimination and harassment in the age of zoom.