Brian Johnston, QC and Katharine Mack

COVID-19 vaccination policies have become more prevalent. Public sector employees have been mandated to get vaccinated in a number of jurisdictions, the federal government has mandated vaccinations in the marine and transportation industries, and some provincial governments have required vaccination in other high-risk sectors such as healthcare. Additionally, many private sector employers have voluntarily established vaccination requirements for employees and patrons.

Most recently, the federal government announced that it is developing COVID-19 Vaccination Regulations under the Canada Labour Code, which would come into effect in early 2022. The regulations would require that employees be vaccinated across all federally regulated industries, including banking, broadcasting and telecommunications. Indigenous Governing Bodies and First Nation Band Councils will be exempt in recognition of the right to self-determination and self-government.

If enacted as announced, the COVID-19 Vaccination Regulations will require that federally regulated employers verify vaccination status of all employees – affecting approximately 955,000 employees across Canada. Exemptions would be available to employees for reasons protected by the Canadian Human Rights Act. Employers who do not comply with the vaccination requirement could be subject to administrative monetary penalties.

Last week, there were a few days of consultations with select federal employers and associations. As well a consultation paper has been released.

Concerns have been expressed with this federal initiative including the expected negative impact on industries where labour is already in short supply (e.g. transportation). Some have suggested the Saskatchewan approach as an alternative where employers have the option but are not required to implement mandatory vaccinations. In Saskatchewan, for those employers who opt to implement a policy, legislation and regulations broadly backstops them so long as their actions in implementing and administering the mandatory vaccination policies and other measures are carried out in good faith, whether reasonable or not.

Concerns have also been raised with respect to lack of meaningful engagement, guidance and clarity from the federal government. For example, there have been ongoing challenges for employers in navigating exemption requests on the basis of human rights grounds including disability and religion. While these issues are complex and sometimes emotional, federal employers have been left to respond to these requests in the absence of meaningful guidance from the government nor any promise of a legal backstop to protect employers from legal challenges where they have acted in good faith.

If you have questions, or would like to implement a vaccination policy tailored to your organization, please reach out to a member of our Labour and Employment Group for assistance.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Labour and Employment group.

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