Canadian HR Reporter

July 2021 CAN

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

Issue link: https://digital.hrreporter.com/i/1381898

Contents of this Issue

Navigation

Page 2 of 35

www.hrreporter.com 3 around whether the science was correct and whether the vaccine would have a significant impact on the spread of the flu, says Pickard. "The arbitrators found that science was not strong enough to uphold the employer's position. So, if we ever get into an argument… about whether or not vaccines are truly making the differ- ence, then that could become a difficult path for the employer in a mandatory vaccine situation." In addition, a person might argue that they're prepared to wear a mask instead of getting the vaccine. But that could cause some issues "down the road because the business may not want that to happen," says Pickard, because a worker with a mask might indicate to customers that they haven't been vaccin- ated or may be COVID-positive. While religious or disability objec- tions are valid, employees who are objecting on political or other grounds "will have an uphill battle from a human rights perspective, because that's not protected in most jurisdictions," says McNeill-Keller. "But whether or not a tribunal will say that the public health implications of not being vaccinated constitute an undue hardship such that an employer does not need to accommodate will be a case-by-case analysis that's going to have to be undertaken based on the timing of the pandemic and where we're at from a public health perspective, the circum- stances of the workplace, and what the employee in question does. Can they work from home, or are they a front- line worker, for example… or essential employees?" The efficacy argument Another problem employers could face is if someone challenges the necessity of a vaccine by questioning the data. If the science shows that vaccines are not effi- cacious, that might set up an argument later on, says McNeill-Keller. "But that's not what the science has shown today. And employers are going to be making point-in-time decisions based on the science available now… including public health recommenda- tions, Health Canada recommendations and other relevant sources, government or otherwise. [Right now], the consistent refrain is that vaccines work; that they are, generally speaking, safe; and that they are a key component of our exit from this pandemic." When it comes to the influenza vaccine, there's been case law in Ontario Do incentives make sense? Despite working hard to combat the spread of COVID-19 by implementing several sanitary measures and cooper- ating with health services in Quebec, Ontario and Alberta, food processing company Olymel has faced several outbreaks at its plants, with three worker deaths linked to the virus. Recently, the company decided to encourage workers to get vaccinated against COVID by offering $25 per shot for a total of $50. But the actual amount is not important, says Richard Vigneault, head of corporate communications at Olymel in Saint-Hyacinthe, Que. "A vaccine has no price tag because it's so important to get rid of the pandemic and to return to a normal life. [So] that was just a supplementary benefit to help people get vaccinated." But McNeill-Keller says employers should be careful with these types of incentives to ensure they don't create stigma in the workplace for those who can't or aren't willing to be vaccinated. "[They should consider]: Does it create an adverse working environment for that individual, and how do we miti- gate against any unintended or indirect negative impacts of an otherwise well- meaning incentive program?" she says. If, for example, an employee cannot get vaccinated and therefore won't get the $200 vaccination bonus, is that an adverse impact that would create a human rights-related challenge? "The devil's in the details on how [these programs are] executed and what the criteria are, and what the disclosure requirements will be and what the policy is, and making sure that those poli- cies are clearly communicated and that INCENTIVES POPULAR WITH MANY WORKERS "How do we mitigate against any unintended or indirect negative impacts of an otherwise well- meaning incentive program?" Kate McNeill-Keller, McCarthy Tétrault employees understand the parameters of them," says McNeill-Keller. Employers should be very careful when offering an individual incentive, says Tiwari, but group incentives that encourage a workplace to achieve an 80-per-cent vaccinated rate, for example, are "a great way to encourage everybody." Privacy concerns Of course, in confirming that staff have been inoculated against COVID-19, employers must ask for proof. But does this raise privacy issues? EACOM has gotten around the issue by asking people to provide proof only if they want the bonus payment, says Larouche. "We're not forcing it, if people don't want us to know that [they've] got vaccinated... It's up to them." The privacy issue will depend on a variety of factors, including the loca- tion and type of employer, as there are different privacy statutes at both the provincial and federal level, says McNeill-Keller. "There are certainly employers who will view the benefit of disclosure... from a public health perspective as outweighing 50% Percentage of workers who say their employer has encouraged them to get the vaccine when available 38% Percentage of workers who say the vaccine is required in order to return to their physical workplace 60% Percentage of workers who would take the vaccine if their employer offered them $100 to do so Source: Perceptyx, U.S. EACOM workers at the Sault Ste. Marie, Ont. location.

Articles in this issue

Links on this page

Archives of this issue

view archives of Canadian HR Reporter - July 2021 CAN