As Canadians across the country continue to roll up their sleeves for their COVID-19 vaccines, employers are slowly starting to remind staff that office life will return — and soon.
But for some companies, there’s a catch: you might be required to be vaccinated before going back to work.
That’s the policy that may soon await those who work for Google — including, potentially, Canadians — as CEO Sundar Pichai told employees in a recent email.
“First, anyone coming to work on our campuses will need to be vaccinated,” he wrote.
“We’re rolling this policy out in the U.S. in the coming weeks and will expand to other regions in the coming months.”
Navigating vaccination status and safety in the workplace
It’s not just Google. Facebook and Netflix also just announced their plans to require vaccines for their on-site employees in the United States. The development has Canadians asking — could our companies be next?
The question of mandating vaccines for employees is a tricky terrain for companies to navigate, according to experts. Whether your boss is requiring you to get a shot or not, the company will likely be faced with tough legal and ethical questions in the coming weeks and months.
In a bid to get some clarity on the question, Global News contacted 13 major Canadian companies to see whether they also intend to implement mandatory vaccination policies going forward. Here’s what we learned.
Wait and see approach
Out of the companies Global News contacted, none of those that replied expressed an intention to mandate vaccination for employees returning to the office anytime soon.
In the United States, Facebook is requiring its employees to be vaccinated before they step onto the campus where they work. But in an emailed statement sent to Global News, Facebook Canada said they don’t have an announcement for their Canadian offices — at least not yet.
Canada’s big banks sang a similar tune in the comments they sent to Global News. Both CIBC and RBC, two major employers in Canada, said they aren’t requiring employees to be vaccinated right now. However, both companies said they encourage their staff to get their shots.
CIBC is providing staff with paid time off to get their vaccines, a spokesperson said.
RBC’s spokesperson, meanwhile, said the company is “encouraging vaccinations wherever possible, although we’re not currently requiring that employees get vaccinated.”
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Over at BMO, the company referred Global News to a statement CEO Darryl White made on LinkedIn back in February, which said there is “no plan” to mandate vaccinations for employees but they’re “strongly” encouraged to get them.
Amazon did not address vaccines at all in the response they sent to Global News, instead deferring to the guidance of local governments in Canada and reaffirming its decision to keep employees at home wherever possible.
For lawyers who work in the world of employment law, this wait-and-see approach isn’t coming as a surprise — especially given that the government hasn’t mandated vaccines in most of its regulated workplaces.
While Ontario has taken steps to mandate vaccinations in long-term care homes, public servants and other health-care workers aren’t subject to any COVID-19 vaccine rules yet.
“If government is not willing to take that action, private companies might be less inclined because of the fact that they’re going to feel more likely to risk some kind of a lawsuit or legal challenge,” said Hermie Abraham, an employment lawyer and the owner of Advocation Professional Corporation.
“So I think it’s going to be a wait and see.”
Is this legal?
Companies deliberating over whether or not to require their employees to get a COVID-19 vaccine likely have a key consideration at the front of their minds: whether they could end up getting sued.
It’s not a question with a clear-cut answer, according to multiple employment lawyers.
“With all legal answers, it always depends,” said Abraham.
“For example, if it was the type of workplace where, let’s say, social distancing can’t be achieved or there’s a high chance of transmission between workers … then in those circumstances, I can see employers being able to have a mandatory policy and it being upheld legally.”
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But if an office can safely assure distancing or masking, or allow employees to keep working from home, it might be tougher to make a legal case for mandatory vaccination, she added.
And things could get tricky if an office terminates an employee over a refusal to get vaccinated, according to employment lawyer Jon Pinkus, a partner with Samfiru Tumarkin LLP.
“I think that employers should assume that that for the most part, they will not be able to require vaccines as a term of employment. And if they introduce a vaccine requirement, an employee refuses, then if they decide to terminate that employee, they’re going to owe that employee severance,” Pinkus explained.
“And in certain circumstances, they may actually have a human rights violation on their hands as well.”
Compelling employees to provide proof of vaccination is also a source of some legal difficulty.
“Employers can ask screening questions to be able to ascertain whether or not somebody has been in close contact with somebody who has COVID, whether the employee has specific types of symptoms with respect to the virus,” said Abraham.
“It’s not so much what an employer can and can’t ask, but the reasonableness of their asking where the law comes into play.”
In the case where an employer is mandating vaccination, they’ll have to make sure they respect their employees’ privacy as they request proof.
“You want to do it confidentially, so you don’t want to make their colleagues aware of or other people or members of the public aware of their vaccination status,” Pinkus said.
“You want to make sure that you’re not retaining the information somewhere unnecessarily.”
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If word gets out about people’s vaccination status in the office, legal issues with respect to harassment could also crop up, the lawyers warned.
“Under the common law, workplaces and employers have a duty to treat their employees with dignity, have a safe and fair workplace,” Abraham said.
She said Canadians may see situations where an environment becomes toxic, whether it be because of an outspoken anti-vaccine employee or vice versa.
“That’s where employers need to have good policies about respect in the workplace, and that’s just respectful differences across the board,” Abraham said.
An employee’s right to a safe workplace can blur the issue even more. While employers can continue to mandate masks and distancing, an employee feeling unsafe as a result of a lack of vaccine rules can complain to the Ministry of Labor, according to Pinkus.
“But I suspect an employee complaining just by virtue of the fact that they don’t know if their colleagues are vaccinated or not is not going to be enough for that to be an actual safety violation,” he said.
“So it’s a balancing act and it’s a tough balancing act for employers.”
Is this ethical?
Companies debating vaccine policies aren’t only constrained by the law. There are also ethical considerations that could come into play as they decide whether or not to enact their own vaccine rules.
The first consideration, according to bioethicist Kerry Bowman, is whether everyone has had a chance to actually get a vaccine. After that, he said, employers will need to weigh whether the safety concerns in question justify limiting some employee freedoms.
“The ethical concerns with it are freedom of choice, freedom of movement. There is an element of surveillance to it. And then the strong arguments of vulnerable people (who) may well have less access to vaccine certificates in general,” he said.
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But while people are entitled to freedom of choice and movement, there are also ethical considerations for the people who want their colleagues vaccinated so they can work in a safe environment.
“If someone chooses not to be vaccinated and absolutely wants to be back in the workplace, they may well be creating a potential risk for other people,” Bowman said.
“Ethics is often a balancing act.“
–With files from Global News’ Jackson Proskow
© 2021 Global News, a division of Corus Entertainment Inc.