December 3, 2021
by Mariana Bracic
Mandatory COVID vaccination policies implicate a complex intersection of laws including employment, human rights, occupational health and safety, privacy, personal health information, administrative and constitutional law. And this area of law is in near-constant flux as this article goes to print.
1. Must you have a COVID vaccination policy?
The short answer is: probably. The long answer is that it depends on where your practice is located.
This article cannot cover all relevant laws across the country, which are expanding daily. In Ontario, for example, new regulations provide that an organization must operate in compliance with any advice from the Chief Medical Officer [or local health unit] requiring implementation of a vaccination policy or specifying what the policy must include.
These provisions may be challenged in Court. Delegated legislation can undermine the rule of law and basic constitutional principles because such laws are made by unelected people without parliamentary oversight or stakeholder consultation. However, Courts thus far have been extremely deferential to governments on COVID measures.
In addition to emergency legislation, occupational health and safety legislation across the country has long required that employers take reasonable steps to protect workers from health and safety risks. Mandatory vaccination policies are arguably one way to satisfy this obligation. However, other alternatives may be reasonable depending on the circumstances: recommending vaccinations, masking and distancing protocols, air filtration, and testing and self-isolation requirements.
How “mandatory” is mandatory?
“Mandatory” means compulsory. As this article is going to print, many organizations, including the federal government, are implementing vaccination policies that sound strict but actually have gaps through which one could drive a truck.
The federal government’s “mandatory” vaccination policy for federally regulated employees does not actually apply to nearly 70 percent of the federal workforce. The remaining 30 percent of employees may attest (but need not provide corroboration of) their vaccination or entitlement to an exemption.
Many provincial and other policies similarly have significant exemptions. For example, the Ontario Chief Medical Officer of Health’s directive mandates that certain healthcare settings (notably not dental offices) have a vaccination policy that allows employees to avoid vaccination by providing a medical reason or completing a COVID vaccination educational session, along with regular antigen testing in either case.
In our brokerage work at MBC, we consider a vaccination policy advisable because, for the foreseeable future, the issue of staff vaccination status will arise in sale transactions. Having a vaccination policy avoids disrupting the sale process because it demonstrates to potential purchasers and their lawyers that the seller has been proactive in addressing the matter.
The RCDSO “strongly recommends” that “all dental practices have a workplace COVID-19 vaccination policy consistent with Directive #6 issued by Ontario’s Chief Medical Officer of Health.”
The RCDSO guidance also reminds dentists that they “must provide care to existing patients regardless of their views about vaccinations or their decision to receive or decline vaccination.”
What your colleagues think
At MBC, we have seen a very diverse range of views from clients about vaccination policies. Some doctors have asked us to implement truly mandatory vaccination policies requiring all staff to be inoculated (subject to human rights). Other doctors have not required their employees to disclose their vaccination status at all and would prefer to continue their health and safety protocols as they were.
2. Assuming you implement a vaccination policy, what are the considerations?
Any vaccination policy must be drafted and implemented carefully, with sufficient regard to the following considerations.
Failing to address and offer due accommodation for human rights (such as a disability or religious exemption) may leave the employer the target of litigation. If an employee refuses vaccination for a reason protected by human rights legislation, the employer must accommodate the employee (subject to certain limitations). The current list of medical exemptions is small but may grow over time.
Vaccination status is personal medical information and, therefore, private and confidential. Thus, all of the protections accorded to personal medical information apply to vaccination status and your vaccination policy must reflect that.
If, as a dentist, you are asked for your own vaccination status by a patient, you may choose whether or not to disclose it. If you are asked for the vaccination status of your staff, you are not permitted to divulge it without the staff’s consent. A patient is not entitled to this information and may avoid or reschedule booking an appointment if they so choose.
Enforcing a mandatory vaccination policy
If an employee refuses to vaccinate for reasons other than a protected human rights ground, the employer certainly has the option of terminating the employee lawfully (by providing the employee notice of termination or pay in lieu of notice). We expect a lot of lawsuits over whether terminating an employee who refuses to vaccinate will allow termination for cause (ie. without notice or pay in lieu of notice). This is far from settled law at this time.
How courts decide on this issue will likely depend on the specific industry in each case. Bear in mind that articles you read in the popular press are targeted toward general readership, written by lawyers who serve clients in myriad industries. As lawyers who serve doctors exclusively, our professional opinion is that the excellent track record achieved by dental offices in infection prevention and control is a material consideration; dental offices have been open successfully without mandatory vaccination for a long time. A discerning employee-side lawyer will undoubtedly argue that this itself is proof that there is no just cause for terminating an unvaccinated employee (absent specific legislation).
It may seem morally repugnant, having just faced the threat of a collapse in our healthcare system, and after months of celebrating healthcare workers as extraordinary heroes, then to terminate these workers for their unpopular medical choices.
The unvaccinated cannot go to restaurants or board planes or trains. Should they also lose their livelihoods because they do not have the same comfort level as the rest of us injecting something into their body? Given Canada’s world-leading vaccination rates, perhaps we should avoid a tyranny of the majority inflicting the “capital punishment of employment law” on the unvaccinated.
It may not be unreasonable (especially for a person who is young and healthy and whose risks from COVID are relatively low) to be hesitant to inject a drug that was developed at warp speed and with which we have barely a year of data on human effects. The lack of evidence of risk (especially after only a year of human use) is not the same as proof of safety. The history of medicine is replete with instances of a drug having been used for years (sometimes decades) before we discovered adverse effects. Moreover, a person who chooses not to get vaccinated is largely risking their own health and poses little risk to those of us who are fully vaccinated.
Society’s COVID response thus far has much that is irrational and inconsistent with our approach to many other catastrophic health hazards. According to the World Health Organization, tobacco kills more than 8 million people each year, almost three times as many as COVID. Moreover, non-smokers killed by second-hand smoke total 1.2 million deaths every year, according to the WHO. Not only do we as a society not stop people from smoking, and thereby prevent them from killing themselves, we do not prevent them from killing 1.2 million others every year.
Almost two years into COVID, our public policy decisions should now include input from a range of experts; in addition to public health doctors we should hear from oncologists, psychiatrists, pediatricians, dentists, poverty advocates, statisticians, economists, actuaries, lawyers, addiction researchers, ethicists and many more.
While COVID has killed millions, we cannot ignore millions of other deaths and human ills as externalities. We need our healthcare workers more than ever. And they need their jobs.
Do you need a vaccination policy? Probably. But, for all our sakes, please be humane and thoughtful in its implementation.
About the Author
Mariana Bracic, Founding Lawyer of MBC Legal and MBC Brokerage, is passionately devoted to protecting doctors and their valuable practices. She considers herself an “employment-law nerd”. She can be reached by phone at 905-825-2268 or through email at firstname.lastname@example.org.