Respiratory Infectious Diseases / COVID-19 – Tips

If you require further guidance or assistance, it is recommended to refer to or contact your jurisdictional (federal, provincial, or territorial) authorities and commissions:

• Occupational Health and Safety Authorities
• Employment and Human Rights
• Canadian Human Rights Commission or provincial-territorial Human Rights Commissions
• Public Health Agency of Canada (PHAC) or local Public Health Authorities (PHAs)

For legal aid or representation, it is recommended to contact Legal Aid services or a lawyer specializing in employment and human rights law.

If applicable, you may also wish to consult with your union representatives to ensure consideration of collective agreements.

Jurisdictions and workplaces in Canada may implement (or have already implemented) vaccination policies which encourage eligible workers to be fully vaccinated against COVID-19.

Benefits of COVID-19 vaccination include:

• Protection against severe illness.
• Reducing the number of critically ill patients in the healthcare system.
• May reduce the likelihood of developing symptoms of post COVID-19 condition (long COVID).
• Less financial and operational impacts due to absent workers.
• Better access to domestic and international travel (e.g., rail, ship, air), where vaccination requirements exist.

COVID-19 vaccination policies might require:

• Workers to be fully vaccinated as a condition of employment.
• Workers to be fully vaccinated as a condition of entering the workplace.
• Routine testing of all workers or only those who are unvaccinated.
• Documented proof of vaccination (hardcopy or electronic) for an individual to access a private or public location, service, or event.

Vaccination policies were implemented across several jurisdictions in Canada, restricting access to services in various sectors and industries, particularly high-risk settings (e.g., healthcare, long-term care). Refer to your local jurisdiction to know if COVID-19 vaccination is required.

The employer may decide to implement a vaccination policy for their workers (e.g., full-time and part-time employees), and others who are performing work for them (e.g., volunteers, temporary workers, contractors). The employer may also choose to restrict public entry to their establishment based on vaccination status.

When considering or drafting a policy, employers should make sure that:

• It is necessary (e.g., first explore if other measures can achieve the same degree of protection in the workplace setting).
• It is evidence-based and proportional to the current risks.
• Stakeholders including human resources, health and safety committee or representative, and the union (if applicable) are consulted.
• The need for the policy is explained to workers.
• The policy is time-limited or has criteria to remain in effect (e.g., case numbers, vaccination rates, presence of variants of concern, etc.).
• There is a confidential process in place for individuals to disclose their personal information and documents (e.g., signed attestations of vaccination status, proof of vaccination, proof of a valid exemption, and disclosure consent forms).
• Privacy and personal information are protected during collection, storage, and destruction of records.
• Accommodation is provided to workers and others (e.g., students, residents, customers) who cannot receive the vaccine as a result of valid exemptions (e.g., severe allergy to a component of a COVID-19 vaccine) or on protected human rights grounds.
• Workers are protected from stigma, and violence and harassment in the workplace due to their own vaccination status, or due to enforcement of a vaccination policy or passport system on behalf of the employer.
• It addresses how to overcome barriers and support accessibility (see below).

Some individuals may experience challenges accessing vaccination services. Provide support to overcome these barriers, such as paid leave to attend clinics, paid sick leave to recover from the vaccine’s side-effects, hosting in-house vaccination clinics, providing funds for transportation to a clinic, etc.

Here is an example Vaccination Policy Template that can be modified as needed. When drafting a vaccination policy, you should obtain independent legal advice as what is permissible will largely depend on your specific workplace factors and your jurisdiction.

There may be concerns that vaccination polices could violate the Canadian Charter of Rights and Freedoms or human rights laws. Here is a summary of Canadian human rights laws:

The Canadian Charter of Rights and Freedoms protects seven categories of rights and freedoms, including fundamental freedoms (religion, beliefs, etc.), and democratic, mobility, legal, equality, and language rights.

These rights and freedoms are not absolute. There may be limits, including when an individual’s personal opinions and beliefs (such as about vaccination and other public health measures) could infringe on the rights of other individuals or undermine public programs and policies.

The Charter only applies to governmental decisions, actions, or laws. Examples include workers in the public service, national public health laws, and international transportation and travel (e.g., border closures and restrictions, pre/post travel testing, vaccination, quarantine, etc.).

The Canadian Human Rights Act (CHRA) applies to federally regulated workplaces and workers.

The CHRA prohibits discriminatory practices (CHRA, Part 1, s.5) against individuals based on prohibited grounds (CHRA, Part 1, s.3). These prohibited grounds are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability, and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

As with the Charter, there are legal exceptions to the Act and these rights are not absolute. The duty to accommodate a valid exemption ends if that accommodation would reach the threshold of ‘undue hardship’ for the employer. (CHRA, Part 1, s.15(1) and s.15(2)).

The Provincial and Territorial Human Rights Acts or Codes apply to workplaces that are regulated under their respective provincial and territorial jurisdictions.

These laws provide equal access with respect to services, goods, and facilities, and also prohibit discrimination based on personal characteristics. Often referred to as ‘protected grounds’, these include race, colour, ancestry, place of origin, sexual orientation, gender identity or expression, age, disability, marital status, and family status among other grounds. Each jurisdiction may use slightly different words to describe similar protected grounds and may have additional protected grounds.

Refer to your jurisdiction for details:

Alberta Human Rights Act

British Columbia Human Rights Code

Manitoba Human Rights Code

Newfoundland and Labrador Human Rights Act

New Brunswick Human Rights Act

Northwest Territories Human Rights Act

Nova Scotia Human Rights Act

Nunavut Human Rights Act

Ontario Human Rights Code

Prince Edward Island Human Rights Act

Quebec Charter of Human Rights and Freedoms

Saskatchewan Human Rights Code

Yukon Human Rights Act

Canada is currently offering the COVID-19 vaccine on a voluntary basis to anyone in Canada who is eligible and would like to receive the vaccine. If a person chooses to not receive the vaccine, it is important for them to understand that they might not be able to fully participate in activities and gatherings where proof of vaccination is required.

Individuals should be aware that without a valid exemption recognized by the local jurisdiction (e.g., having myocarditis before getting a COVID-19 vaccine) or applicable human rights legislation, experiencing restrictions due to a personal preference to remain unvaccinated might not be considered discriminatory.