Vaccination Policies for Covid-19 Within the Police Sector (and Beyond)
Pamela Machado and Sue Board
The following is an examination of the applicable statutes related to this issue; however, it is noteworthy that neither the Provincial nor Federal government have advised of their desire to pass new legislation that would require workplaces to make vaccination mandatory for their employees. Premier Ford has stated that he will not be tabling legislation that allows workplaces to implement a policy for the mandatory vaccination against COVID-19 of employees, as he believes this would infringe upon every Ontarian’s Constitutional Right not to receive the vaccine. This does not, however, mean that Employers will not undertake this on their own; as seen by the direction of the Toronto Police Service, for example.
Does an Employer have the legal right to make inquiries regarding the vaccination status of its employees?
At present, it is up to each individual workplace to create a policy regarding COVID-19 that does not infringe upon their employees’ constitutional rights and rights to privacy. To date, our courts and other adjudicators have not ruled on whether non-unionized employers can require employees to get the COVID-19 vaccine. However, the issue of mandatory vaccination in the workplace is not new in unionized healthcare settings. Prior caselaw relating to mandatory influenza vaccine policies in those settings provide some guidance. In these cases, the employer implemented a workplace policy requiring staff to stay home without pay if they were not vaccinated for influenza or refused to take anti-viral medication during an influenza “outbreak” in the workplace. Among other reasons, arbitrators held such polices were reasonable because:
“The policy did not force staff to get vaccinated. Staff had a choice to either get the influenza vaccine or undergo anti-viral treatment during an influenza outbreak, or stay home without pay. Some of these policies allowed staff to use banked lieu time or vacation credits to help mitigate the financial impact of staying home. Staff were not fired if they refused the vaccine or treatment;
Requesting an employee’s vaccination status can be seen as an invasion of privacy, as this information constitutes personal health information, and is protected under the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 , (hereinafter referred to as “PIPEDA”). Personal information is considered to be any information recorded or not, regarding any individual; this includes a person’s vaccination status.
PIPEDA states that the Personal Health information of an individual, whether that person is living, or deceased includes the following:
- information concerning the physical or mental health of the individual;
- information concerning any health service provided to the individual;
- information concerning the donation by the individual of any body part or any bodily substance of the individual or information derived from the testing or examination of a body part or bodily substance of the individual;
- information that is collected in the course of providing health services to the individual; or
- information that is collected incidentally to the provision of health services to the individual.
Requesting an employee’s vaccination status would fall under the above criteria. When requesting an employee’s vaccination status, the employer must first show that the information being requested is for a bona fide business reason, and that the loss of privacy of their employee is proportionate to any benefit intended to be gained. In the case of the vaccine status of an employee, the employer could argue that they are protecting other employees against COVID-19 by requesting their employee’s vaccination status. This is the argument that is undoubtedly going to be interpreted as valid by the Courts, given the safety sensitive nature of the policing profession, and the close contact of its members with the public.
The Employer may rely on evidence of the vaccine’s effectiveness in preventing COVID- 19 symptoms, however, as the long-term data regarding the effectiveness of preventing the transmission of COVID -19 is lacking, this argument is problematic. Among the primary factors when implementing a proof of a vaccination policy within a workplace is to look at Canadian privacy laws first to ensure that the policy is framed within the legal guidelines. The Collective Agreement, the Ontario Human Rights Code, and Bill 168 should also be primary considerations in the drafting of any policy.
Where an employer can provide proof that the request is intended to maintain a safe and COVID-19 free workplace, they may be permitted to collect their employee’s health information, however, prior to collecting this information there should be a clear policy that sets out:
- Why the information is being collected;
- How the employer will be protecting the information collected;
- Who will have access to it;
- The purpose for collecting the data;
- How long the information will be kept on file; and
- How the data collected will be stored.
A written policy protects both the employee and employer if it is determined that a breach has occurred in relation to an employee’s private health information. Employers must ensure that their newly created policy adheres to Canadian privacy laws when considering implementing a proof of vaccination program/policy. In a unionized environment, the collective agreement will become an important tool for both the employer, as well as the Association to use when drafting the policy. The management rights clause should be examined, as well as any specific language or policies regarding the Occupational Health and Safety Act.
The policy must also include an exemption clause for employees who either cannot get vaccinated, or choose not to based on health or religious reasons. The employer must also ensure that the policy does not result in differential treatment of unvaccinated employees, as this could be deemed grounds for discrimination. The policy should also include consideration for employees who refuse to divulge their vaccination status, and what type of accommodated work will be provided to those individuals. Ultimately, any policy must be drafted to include protections under the Ontario Human Rights Code, the Duty to Accommodate, and the Collective Agreement.
Mandatory Vaccination for Schools under the Immunization of School Pupils Act.
Schools require that students provide updated vaccinated records for common diseases to
attend school, however, there is no legislation that requires a person to first, be vaccinated against COVID-19, nor secondly to divulge their vaccination status.
The Immunization of School Pupils Act R.S.O. 1990, C I.1 , (herein referred to as the ISPA) was created to help protect children who attend school. Section 2 of the ISPA states that “the purpose of this Act is to increase the protection of the health of children against the diseases that are designated diseases under this Act.” At this time the ISPA has not been amended to included Covid-19, however, it may be amended to include the Covid-19 vaccine once it is approved for all school-aged children. Currently the ISPA requires that the Medical Officer of Health for each district maintain an updated record of immunization for each pupil and that they review the record on a regular basis. The ISPA does allow for exceptions, one of which is religious beliefs.
Employers who are developing a COVID-19 workplace policy should examine the ISPA, as well as the PIPEDA to assist in framing how the data is collected, reviewed and stored, in order to protect the individual’s privacy rights. Associations are best suited to collaborate with Employer’s to ensure these policies are created within the legal parameters set out in this paper. Failing to do so may result in defective policies that later, must be grieved, at the risk of endangering Employee rights and privacy considerations.
Current Vaccination and Masking Policies
There are several policies regarding vaccinations and masks within the health care sectors. Most of these were developed to combat influenza, and are now being looked at as possible standards for which employers can request proof of vaccination in relation to COVID-19. The Ontario government has just released a Vaccination policy directive applicable to hospitals, ambulance services and community and home-care service providers. The government does not intend to make vaccination mandatory, however, within this sector specifically, it has directed that every organization must establish, implement and ensure compliance with a Covid-19 vaccination policy. For those who have declined the vaccine, they will be required to be regularly tested for the virus, and wear protective equipment while at work.
Past arbitration cases also dealt with “Vaccinate or Mask” influenza policies implemented in healthcare-related workplaces. In such cases, employers implemented policies requiring staff to either get the influenza vaccine or wear a mask at all times while at work for the entire flu season (roughly six months of the year). In one British Columbia case,an arbitrator found such a policy was reasonable given clear evidence that the immunization of healthcare workers helped reduced transmission of influenza to patients. The arbitrator also found that the policy gave employees the choice of either getting vaccinated or wearing a mask, and the policy contained specific accommodations for employees who refused to be vaccinated. In sum, requiring employees who refused vaccination to wear a mask was held not to be an unreasonable requirement.
In contrast, Ontario arbitrators have found similar “Vaccinate or Mask” policies were unreasonable “coercive tool[s]” designed to drive up influenza vaccination rates because, among other reasons:
- the medical and scientific evidence was lacking on whether masking effectively prevented the spread of influenza, and whether asymptomatic individuals effectively transmitted influenza to others;
- there was evidence that the influenza vaccine varies in effectiveness every year, so it did not make sense that vaccinated staff were not also required to wear masks;
- the “ask” of requiring workers to wear a mask for their entire working shift for six months of the year while entirely symptom-free was unreasonable in light of the lack of evidence on mask effectiveness and asymptomatic transmission; and
- there was little evidence that “vaccinate or mask” policies actually prevented outbreaks in the workplace.
However, it is important to note that the above cases involved unionized workplaces, and one factor arbitrators considered in upholding or striking down mandatory influenza vaccine policies was whether the policies were consistent with the collective bargaining agreement between the employers and their unions. No such agreements exist in the non-unionized context. Further, these cases only dealt with influenza and did not address the seriousness of a global pandemic such as COVID-19.
To date, only one arbitral decision has dealt with mandatory COVID-19 testing in a retirement home. The employer’s policy required staff to be tested every two weeks for COVID-19, regardless of symptoms. Employees who refused to be tested would be placed on an unpaid leave. The Association challenged the policy, and the arbitrator upheld the policy, finding that the testing requirement, even though it was intrusive to the individual, was reasonable in light of all of the circumstances. In upholding the policy, the arbitrator noted:
“Highly infectious and often deadly for the elderly, especially those who live in contained environments. In my view, when one weighs the intrusiveness of the test: a swab up your nose every fourteen days, against the problem to be addressed – preventing the spread of COVID in the Home, the policy is a reasonable one. While the Home has not had an outbreak I agree entirely with the Employer that, given the seriousness of an outbreak, waiting to act until that happens, is not a reasonable option.”
While the above decision does not concern proof of vaccinations policies, it does suggest that Arbitrators and courts will recognize the risks posed by Covid-19 and may therefore, be more likely to uphold workplace policies that place worker’s safety over individual privacy rights. It remains to be seen whether arbitrators and courts will uphold mandatory Covid-19 vaccination policies.
Best Practices for Creating and Enforcing a Vaccination Policy
Employers must create a policy that is clear and concise to avoid problems when it comes to interpretation. The Employer must determine if a policy is necessary to create a safe work environment, and in compliance with all current legislation regarding the collection and use of an individual’s personal health information. The policies should state clearly how the personal information will be collected and stored, who will have access to that information and how long that information will be retained by the Employer. The policy must follow the guidelines set out in PIPEDA, adhering to all privacy legislation in Canada. The policy should be available in print and electronically. The policy should also include any exemptions, and outline the appropriate accommodation for those exempted employees.
Despite the lack of jurisprudence on this issue, employers must recognize that some employees will refuse vaccination on grounds protected under the Code, such as medical or religious grounds, and employers may be required to accommodate such employees to the point of undue hardship. For instance, an employee will likely be entitled to protection under the Code if he or she has a severe allergy to the COVID-19 vaccine, or has a medical condition or takes medication that will negatively react with the COVID-19 vaccine. Likewise, an employee who objects to vaccines for bona fide religious reasons will also likely be entitled to accommodation under the Code.
A vaccination policy should contain exceptions for such employees requiring accommodation, and employers should explore ways to accommodate them. Possible forms of accommodation may include allowing unvaccinated employees to continue working remotely from home; requiring employees to complete COVID-19 assessments before entering the workplace; maintaining appropriate physical distancing; and wearing appropriate personal protective equipment such as a mask.
Given the uncertainty regarding this matter, employers should implement a vaccination policy that allows them to take a flexible approach to an employee’s non-compliance. Associations should review any suggested policy with the Collective Agreement to prevent any conflicts, ensuring that the privacy of members is protected, and the policy itself is not discriminatory or arbitrary.
 Trillium Ridge Retirement Home v. SEIU., Local 183,  OLAA No. 1046 (Emrich); Carewest v. A.U.P.E.,  AGAA No. 76 (Graham); Chinook Health Region v. UNA, Local 120,  AGAA 88 (Joliffe); Interior Health Authority v. BCNU,  BCAAA No. 167 (Burke); North Bay General Hospital v. ONA,  OLAA No. 669 (Chauvin).
 Can Employers Require Employees Vaccinate Against Covid-19? June 24, 2021, Rich Appiah and Domenica Moran.
 Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5.
 Supra. Note 4 section 11.
 Immunization of School Pupils Act R.S.O. 1990, C I.1.
 Ibid. section 2.
 Directive #6 for Public Hospitals within the meaning of the Public Hospitals Act, Service Providers in accordance with the Home Care and Community Services Act, 1994, Local Health Integration Networks within the meaning of the Local Health System Integration Act, 2006, and Ambulance Services within the meaning of the Ambulance Act. R.S.O. 1990, c. A.19. Issued under Section 77.7 of the Health Protection and Promotion Acty (HPPA), R.S.O. 1990, c. H-7.
 Health Employers Assn. of British Columbia and HAS BC (Influenza Control Program Policy), Re,  BCCAAA No. 138., Supra Note 3 at page 16-3.
 Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada, 2020 CanLII 100531 (ON LA). Supra Note 3 at page 16-4.
 Supra Note 8 page 9.
 Supra Note 3 at page 16-8.
 Supra Note 3 at page 16-8.