Over the last year, many employers have introduced mandatory COVID 19 vaccine policies into their workplaces. These policies have been heavily influenced by the COVID 19 climate in which they were adopted. Practices adopted by local business communities, the availability of different kinds of vaccines, and the wisdom of provincial health officers and the content of their orders have all significantly informed what many COVID 19 vaccine policies say.
As Canadians and others around the world have confronted the Omicron variant, the rules and guidance relating to COVID 19 and COVID 19 vaccines have drastically changed. Over the last few months alone:
- third or booster jabs have become widely available and are recommended for protection against Omicron;
- PCR testing has become much more restricted and difficult to access;
- the self-isolation period for infected individuals has been reduced;
- capacity limits in indoor settings have been lifted;
- mask mandates have been removed; and
- vaccine passport systems are being abolished.
What do these changes mean for employers' COVID 19 vaccine policies?
A number of cases, mostly in the labour arbitration context, have assessed the legality of COVID 19 vaccine policies. In these decisions, most arbitrators have used a highly contextual approach to determine whether the COVID 19 vaccine policy in question is permissible. A key takeaway from the early cases has been that what's permissible in one workplace might not be permissible in another.
The recent decision in Power Workers' Union v Elexicon Energy Inc., 2022 CanLII 7228 (ON LA) ("Elexicon"), provides insight into whether COVID 19 vaccine policies will be assessed differently in light of the shifting landscape.
In Elexicon, the COVID 19 vaccine policy in question was implemented and grieved in October 2021 (during the Delta wave), but the arbitration wasn't held until January 2022 (during the Omicron wave). The arbitrator ultimately decided that the policy was reasonable. Two things about the decision are of note:
- first, while the context at the time the policy was implemented and grieved was important, the arbitrator also assessed the policy based on the context at the time the arbitration was held; and
- second, the arbitrator's findings were based more on the overall circumstances in the local community and at the specific workplace in question than on what arbitrators have decided in other cases.
The key takeaway from Elexion is that what's permissible today might not be permissible tomorrow. In other words, the legality or permissibility of an employer's COVID 19 vaccine policy may be heavily impacted by the COVID 19 climate at the time it is assessed, not just by the historical climate in which it was implemented.
What should employers do now?
Employers need not abandon their Covid 19 vaccine policies just yet. There are rumours of yet another Omicron wave coming, and having a consistent policy is easier to manage than constantly introducing and repealing policies.
However, employers should be prepared for their COVID 19 vaccine policies to come under stricter scrutiny. To prepare for this, employers should do two main things:
- immediately review their COVID 19 vaccine policies and consider whether the standards and expectations set out in them still make sense; and
- set reminders to prompt them to review their COVID 19 vaccine policies on a regular basis.
If parts of the policies have become inapplicable, impractical or are unlikely to be effective, employers should amend them. For example, employers should ensure that if their policy permits regular testing as an alternative to being fully vaccinated, the type of testing is still available. Employers should also check their definitions of what it means to be "fully vaccinated" to make sure they are consistent with public health guidance in their sector.
As the COVID 19 landscape continues to evolve, employers need to review (and potentially update) their policies at least every few months and whenever major COVID 19 developments arise.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
