• Employer Strategies for Vaccination

    September 9, 2021

    Employer Strategies for Vaccination
    Planning for the post-pandemic workplace

    I know that many members are struggling with conflicting vaccine mandate directions from different owners. Unfortunately, to date, the Government of Saskatchewan has declined to provide direction on this issue, or to clarify the rights of site owners or employers. Effectively, the government has been clear that each workplace must make its own decisions and that this issue will be resolved in the courts. While we hope the government will change its perspective on this issue soon and provide either direction or protection for employers, in the mean time, each company is on its own. I want to encourage you to seek a legal opinion before you implement any policies in your workplace with respect to the mandating of vaccines or the disclosure of vaccine status. While a general article from a lawyer does not replace specific legal advice, this article from Miller Thomson is a great primer on this topic. This article will be featured in the upcoming issue of We Build magazine, but I wanted to share it with you now.
    If you are facing concerns with respect to vaccine mandate or disclosure issues, please reach out to us at the associations and let us know. 

    By Dustin Gillanders, Partner, and Carter Bezugly, Student, Miller Thomson LLP
    On March 18, 2021, Saskatchewan became the first jurisdiction in Canada to implement a paid leave to allow an employee to take time off work to vaccinate for COVID-19. Under the amended Occupational Health and Safety Regulations, 2020, workers are entitled to three consecutive hours of leave during work hours to receive a vaccination. However, workers are entitled to more than three hours if the employer determines the circumstances warrant a lengthened break from work; and the employee will not lose any pay or other benefits while receiving a vaccination. An employee is entitled to this leave per dose of vaccine. 
    The paid nature of the leave seeks to remove a barrier for workers who might otherwise be hesitant to lose paid work hours to receive their vaccine.
    Current Law on Vaccination Policies
    Employers across Canada have a legal obligation under occupational health and safety legislation to provide their employees with a safe workplace and to take all reasonable precautions to protect employees from receiving a work-related illness. While implementing a COVID-19 vaccination policy may be one effective way of meeting this obligation, this does not mean that a vaccination policy will be necessary or justified for every workplace. The ability to make vaccination a mandatory condition of employment depends on several factors, such as the level of risk of infection and transmission to employees or others.
    While existing case law considers whether employers can implement mandatory flu vaccination policies within a unionized workplace, it generally arises within the healthcare and residential care industries. Additionally, this case law is also inconsistent. As such, it remains to be seen whether the courts will find these decisions applicable to other industries in the context of a global pandemic.
    Implementing Mandatory Vaccination Policies
    Employers who wish to implement a mandatory vaccination policy may be justified in doing so if: 
    1. It is a necessary health and safety measure of the particular workplace.
    2. It is no more intrusive than it has to be.
    3. It doesn't violate employees' contractual or collective agreement rights.
    4. It doesn't discriminate on any protected grounds.
    In short, the enforceability of a mandatory vaccine policy is mainly dependent on whether the policy is reasonable in the specific workplace and employment circumstances. 
    There are different considerations for unionized and non-unionized workplaces – each with its own set of risks. For example, unions have historically challenged mandatory vaccination policies as an unreasonable exercise of management rights and on the basis that it violates the collective agreement. In the non-union setting, employers will need to be concerned with potential constructive dismissal claims, as well as rights and obligations under human rights and privacy legislation.
    Regarding human rights claims, a mandatory vaccination policy may be discriminatory under human rights legislation if it does not include exemptions for protected grounds, such as disability, gender, or religion. However, the employer may be able to justify a mandatory vaccination policy on the basis that it is a bona fide occupational requirement. A bona fide occupational requirement is: 
    1. Adopted for a purpose that is rationally connected to job performance.
    2. Adopted in an honest and good faith belief that the standard is necessary to fulfill a legitimate purpose.
    3. Reasonably necessary to accomplish that legitimate purpose.

    Even when the criteria for a bona fide occupational requirement are met, an employer must accommodate employees who refuse (or are unable) to take the vaccine based on protected human rights grounds. Otherwise, any adverse treatment based on a refusal to vaccinate could constitute a breach of human rights law.
    Governments seem unwilling to pass legislation mandating vaccination. As such, a key challenge in implementing or enforcing a mandatory vaccination policy is that it will be difficult for an employer, outside of the healthcare context, to establish that previously existing health and safety measures are insufficient to ensure the safety of employees. 
    Practically speaking, a mandatory vaccination policy regarding employees would be difficult to implement or enforce in Canada. 
    Employers may wish to consider alternative policies such as requiring employees to disclose their vaccination status. Though there are still risks with this approach, employers can mitigate the risks through proper policy implementation.
    Alternatives: Vaccination Disclosure Policy
    Just as inquiring into employees' travel history and experience of COVID-19 symptoms have been accepted as a reasonable inquiry to ensure workplace safety, requiring disclosure of employees' COVID-19 vaccination status is likely to be considered a sensible approach as a means of ensuring workplace safety. 
    While creating a policy requiring employees to disclose their vaccination status would mitigate potential liabilities regarding human rights law, privacy law, etc., risks on this front would still require management.
    Employers regulated by privacy legislation must ensure they are only collecting, using or disclosing personal information (such as vaccination status) if doing so is "reasonably necessary" to manage the employment relationship. In addition, employers must provide appropriate notice to employees about what information is being collected, the purpose of the collection, who it is being collected from, who will have access, how it will be stored, and when it will be destroyed. 
    The employer's handling of the personal medical information that forms the proof or lack of regarding an employee's vaccination status must be within the narrow purpose of conducting the employment relationship. Generally, the employer should only require the minimum amount of information possible to address reasonable workplace safety concerns. For example, employers could ask for proof of a vaccination certificate, but the employer would not keep a copy of it. 
    Alternatives: Incentives for Employees
    There are many steps an employer can take to encourage employees to receive the COVID-19 vaccine aside from requiring employees to show proof of vaccination. As a possible alternative, employers may wish to incentivize employee vaccination.
    An example of such an incentive could be an employer offering to cover the incidental costs of vaccination. While the vaccine is free in Canada, an employer could cover all related expenses associated with getting vaccinated, such as travel costs. There is little risk associated with this incentive.
    Employers can offer vaccination incentives provided the incentive does not amount to punishment or adverse treatment for individuals who choose not to (or are unable to) get vaccinated based on grounds protected by human rights law. As previously mentioned, any hindrances (such as increased testing requirements for unvaccinated individuals) must be based on bona fide occupational health and safety requirements and not as a purely punitive measure for remaining non-vaccinated.
    Regardless of the vaccination policy ultimately pursued, employers should ensure that written policies are in place to help ensure that the chosen approach is clearly communicated to employees, the procedures are consistently applied, and employees' privacy rights are protected. In addition, employers should inform employees that they will be accommodated per applicable human rights law. However, without further direction from the government, even the most prudently drafted mandatory vaccination policies may be subject to a legal challenge.
    Our team at Miller Thomson has a reputation for providing practical, timely and responsible advice and services to our clients.  If you have any questions or need assistance, please do not hesitate to reach out to one of our experienced lawyers. For labour and employment inquires contact Dustin Gillanders, a Partner in our Saskatoon office, at or, for construction inquiries, contact Troy Baril, a Partner in our Saskatoon office, at
    Dustin Gillanders is a Partner at Miller Thomson who specializes in labour and employment, civil litigation, and debt enforcement.
    This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice.