The Lifting of COVID-19 Mandates and the Resulting Impact on Workplace Policies


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Government restrictions across Canada have, for the most part, been lifted.

The Ontario government went so far as to announce recently that it has no plans to reintroduce mandatory masking, even as a sixth wave of COVID-19 is underway. The general consensus seems to be that it’s time to accept the reality of living with COVID-19 and move on.

Before, a workplace policy regarding medical interventions or masking would be scrutinized and justified only in the most exceptional circumstances. That all changed with COVID-19, as workplace policies were underpinned by legislative mandates. With mandates now mostly lifted, to what extent can employers still justify mask and vaccination policies?

Health and safety are still as important as ever

Even in the absence of a government decree, employers still have legal obligations in terms of health and safety. These obligations require employers to maintain a safe workplace and take all necessary precautions. Just because the government is not imposing more safety measures against COVID-19 does not in itself make the threat of COVID-19 less real. Based on this, employers are within their rights to continue to maintain such policies for health and safety reasons. Additionally, the Ontario government has specifically stated that companies can choose to implement their own rules and restrictions.

A workplace that does not maintain a masking policy is potentially vulnerable to allegations that it has not taken the necessary health and safety precautions. This is especially true if the workplace is a COVID-19 sensitive environment due to physical proximity between workers, poor ventilation, an older workforce, or other risk factors. . In such contexts, not only is an outbreak more likely, but not having a mask policy in place is likely to be viewed poorly when assessing an employer’s culpability.

Human rights law is still relevant

Canadian human rights legislation has made it clear that the “personal choice” not to get vaccinated, especially when based on misinformation, is not a protected human right.

Complaints that vaccination is against one’s “religious beliefs” or “belief” are unlikely to succeed if based on a single belief. The belief system must have a connection to an organization or community that professes a shared belief system. Simply exclaiming that one’s belief system excludes vaccination, without evidence that such a belief is widely held or held by the community, is unlikely to succeed.

That said, human rights legislation continues to apply to those who cannot legitimately receive the COVID-19 vaccine for medical or disability-related reasons. Employers wishing to maintain a vaccination policy should continue to be prepared to consider a range of accommodations for these individuals.

The return of personal autonomy

The main tension with mandatory vaccination has always been between collective health and safety and the freedom to make one’s own medical decisions. When human rights tribunals issued their official positions on mandatory vaccination, the consensus on vaccination was that public health and safety trump individual liberty, with few exceptions. It was also a time when the federal government mandated the vaccination of its workers, as did provincial governments for many sectors, such as health and long-term care.

Recently, the view regarding the extent to which being vaccinated protects others has changed, along with the lifting of vaccination mandates.

Nonetheless, numerous arbitral decisions have considered the reasonableness of a mandatory vaccination policy and employers have generally prevailed, although each case stands on its own facts.

In a decision earlier this year, the arbitrator pointed to the continued risk of COVID-19 and uncertainty regarding omicron in maintaining a vaccination policy.

In contrast, in another decision released earlier this year, the arbitrator found that a mandatory vaccination policy was unreasonable in the circumstances. He noted that many employees could still work from home, as was their right under their collective agreement. He noted that health and safety is always important, but the employer did not provide a job hazard or risk analysis in this case.

As the COVID-19 situation continues to evolve, the reasonableness of a vaccination policy will continue to be highly context-specific. Employers who wish to continue to enforce restrictions or implement them for new employees should consult with an experienced labor lawyer.

John Hyde is a managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labor law, including representation before administrative tribunals, negotiation of collective agreements, arbitrations, defense of wrongful dismissal and human rights.

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