Canadian Employment Law Today

September 22, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian HR Reporter, 2021 4 How past decisions on workplace policies dealing with flu vaccines, COVID-19 testing and alcohol and drug use could influence the legality of mandatory COVID-19 vaccinations COVID vaccination policies: a Canadian comparative analysis AT THIS time, there are no court or arbitration decisions in Canada addressing COVID-19 vaccination policies. However, a look at how courts and arbitrators across the country have addressed comparable policies, such as flu vaccine policies, COVID-19 testing policies and drug and alcohol policies, will provide some insight into whether a workplace vac - cination policy would be upheld. Drug and alcohol testing policies Generally, drug and alcohol testing policies are permissible in limited circumstances. Arbitrators from Alberta, Saskatchewan, British Columbia, Newfoundland and Labrador and Ontario have found that policies requiring drug and alcohol testing are reasonable in circumstances where the employer has reasonable cause to suspect an employee is impaired, there is evidence of enhanced risk of substance abuse in the workplace (such as a culture of drug abuse), after a significant incident has occurred, or after a "near-miss" accident has occurred. Arbitrators have also found that employ - ers must establish that other, less privacy- invasive means to address the problem have been ineffective. Therefore, the reasonableness of a drug and alcohol testing policy depends on whether there is a high safety risk. If there is not, then it is unlikely a testing policy will be reasonable. For example, in Suncor Energy Inc. and Unifor, Local 707A (Random Alcohol and Drug Testing Policy), Re, an Alberta ar - bitrator found that 14 positive alcohol tests over a nine-year period in the workplace did not constitute a legitimate safety risk requir- ing a drug and alcohol testing policy. While there is a difference between ex- tracting bodily fluids — as would be the case with a drug and alcohol testing policy — and requiring an employee to inject a substance into their body or requiring disclosure — as would be the case with a workplace vacci - nation policy — an arbitrator would likely find that if there is not a high safety risk — the risk of transmission of COVID-19 in the workplace — then a workplace policy requiring vaccination is unreasonable and an infringement on an employee's privacy rights and bodily autonomy. COVID-19 testing policies COVID-19 testing policies have been ad - dressed in two recent Ontario labour arbitra- tion decisions. These decisions can provide insight into how an arbitrator will likely as- sess the reasonableness of a COVID-19 vac- cination policy at the workplace and how an arbitrator will likely balance the com- peting interests of protecting workers from COVID-19 transmissions in the workplace and employees' privacy rights. At the time of writing this article, there were no arbitra- tion decisions from any other jurisdiction in Canada. In Caressant Care Nursing & Retirement Homes v. CLAC (Covid Testing), the employer implemented mandatory bi-weekly CO- VID-19 testing. The union filed a grievance challenging the policy. The arbitrator held that the policy was reasonable, given that the objective of pre- venting the spread of COVID-19 in vulner- able sectors, such as a nursing home, out- weighed the intrusiveness of the COVID-19 test. Given the seriousness of an outbreak, particularly to the elderly residents, it was unreasonable to wait for an outbreak of COVID-19 to occur before implementing a COVID-19 testing policy, the arbitrator said. In EllisDon Construction Ltd. and LIUNA, Local 183 (Rapid Testing Grievance), Re, as part of a pilot program led by the Ontario Ministry of Health, EllisDon implemented a Rapid COVID-19 Antigen Screening Pro - gram, which required employees to take rapid COVID-19 tests and submit the results to gain access to the workplace. In balancing the interests of the employer and employees with the pressing need to reduce the spread of COVID-19, the arbitrator found that the policy was reasonable. In reaching this decision, the arbitrator determined that in this particular work - place, the employees could not maintain six feet of distance given the nature of the work, the risk of spreading COVID-19 was high, significant steps were taken to protect the privacy rights of the employees being tested — the test was administered by healthcare professionals — the test was minimally in - vasive, and there was no evidence that any of the other protective measures — such as the use of personal protective equipment (PPE) and hand sanitization stations — had sig- nificantly reduced transmissions or that all employees were working in an "open air" environment. Based on the above two decisions, wheth- er a policy requiring COVID-19 testing is reasonable or not appears to turn on wheth- er there is a high risk of COVID-19 transmis- sion in the workplace. Factors that address whether there is a high risk include: • the employees' ability to maintain social distance • the application and effectiveness of other safety measures • previous incidents of COVID-19 out - breaks. It is likely that a similar analysis will be undertaken with respect to the reasonable- ness and enforceability of a COVID-19 vaccination policy. Therefore, if the risk of transmitting COVID-19 in the workplace is high, and the danger of such an outbreak may result in serious harm to employees, customers or the public, a policy requiring proof of full vaccination may be reasonable. Flu vaccination Policy Although there is a difference in the risk of transmission between COVID-19 and the flu, a policy requiring flu vaccinations is highly comparable to one requiring COVID-19 vac - cinations, given that both require injecting materials into one's body. Generally, arbitrators across Canada rec- ognize that a person's freedom to make CASE IN POINT: MANDATORY VACCINATIONS Currently, the federal public service, City of Toronto employers and some select Ontario employers (such as those in the healthcare industry) are legally required to implement a workplace COVID-19 vaccination policy. Some businesses that are not legally required to implement a workplace vaccination policy are nevertheless making the decision to do so. Employment and labour lawyer Ronald Minken examines the legal viability of similar types of policies in Canada and how that may inform the enforceability of policies requiring employees to get vaccinated against COVID-19. BACKGROUND BY RONALD MINKEN The central theme that determines whether a policy is reasonable is whether there is a high safety risk in that specific workplace.

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