Jeff: I'd first like to quickly apologize for the change in date of this session and thank you all for being flexible and being able to tune in today. It's lovely to see you all. My name is Jeff Collins. I'm the Business Development and Marketing Manager for Gowling WLGs Waterloo's office. Our discussion today promises to be an exciting one as my colleagues, Bettina Burgess and Hina Ghaus, will walk you through all things HR professionals need to know about COVID-19. Before I go over some housekeeping items I just wanted to take a moment to update everyone on the status of our new office building at 345 King Street West in downtown Kitchener. We are really, really excited to get in there, and actually you can see Bettina is actually in there today, which you can see by her lovely blue background. We are currently finalizing the construction on the interior of the building but we do look forward to welcome you into our space. We are looking forward to welcoming you into our new space within the next couple of weeks. So please look forward to that. If you haven't seen it in person please feel free to drive downtown Kitchener, or you can look in background right now and there's a little shot of it. Today's presentation will be recorded and hopefully we've managed to both pin the presentation and the speakers correctly so that their boxes fill up the main parts of your screen. If not, there are some controls, I believe, in the top hand corner of your screen where you can adjust the layout yourselves. We have muted everyone and we'll ask you to keep your microphones muted during the presentation to help eliminate any background noise. There will be time at the end of the presentation for you to come off mute and ask any questions that you may have. If you prefer to write your questions in, you're certainly welcome to do that using the chat function. Just please make sure you're either sending them to all participants, so that I'm able to see them, or directly to myself, Jeff Collins. Lastly, we will be sending a copy of the presentation afterwards as well as posting the full webinar on our website. So please feel free to put your pens away, sit back and enjoy as I'll hand it over now to Bettina to take us through today's agenda. Thank you. Bettina, you're currently on mute as well right now. Chantelle, when she mutes everyone, she mutes everyone.
Bettina: Okay. Can you hear me now?
Jeff: There you go. Perfect.
Bettina: Okay, there we go. Of course it would be me who has the first technical glitch. Thanks very much, Jeff, and good morning, everybody. It's so good to be connecting with you all. It's been probably almost 2 years since I've done a presentation for a big group of people since COVID started and I was just flipping through some of the names of the people who have joined. Lots of people who I've missed over the past couple of years. I know COVID has been so terribly hard for everyone. It's amazing that 2 years, almost 2 years, later we're still talking about it and giving presentations on it. Of course the latest and greatest is everyone's, thankfully, going to be returning to the office, for the most part, or back to work, for those who have been cloistered at home forever. So now we're dealing with a whole lot of new issues about vaccination and workplace safety. I can tell you that there are so many challenges that people are faced and almost a year ago, a little over a year ago, I was diagnosed with an autoimmune disorder, that rapidly developed to the point where I was pretty incapacitated, and I had to take about 5 to 6 months off work to recover. Thankfully, due to really fabulous drugs, I was able to get better but they're immune suppressant drugs and so this has given me a whole new perspective on COVID and the things that all of us are facing, and while it hasn't necessarily impacted the advice that I give to clients because, of course, that's all based on very objective legal analysis, it has enabled me to have a better perspective as to the dichotomy is that you guys are all facing, as HR and employers, and having to deal with people who have very different personal situations that all come into play when it comes to COVID. So what we're hoping to do today, Hina and I, is go through sort of where we are now with COVID and what are your lives going to be like as HR professionals and employers, as people move back into the office. So Hina's going to start by going through what the vaccination and workplace safety requirements are across, in Ontario primarily, but you'll see that our slide deck has information for every single Province across Canada, but we're not going to go through that during the presentation. It's just there for you to look at later if you need it. If you happen to have employees in those other jurisdictions, and of course, we can help you outside of the presentation if you need help there. Then we're going to talk about the human rights exemptions that are available with respect to vaccination. Hina's going to go through some case law. We don't have a lot right now, but we've got some across the country that has dealt specifically with C-19 issues, and then we're going to describe some ways that you can mitigate your liability in terms of dealing with return to work, vaccination and rapid testing, and then of course, human rights. So now I'm going to turn it over to Hina Ghaus who, by the way, is one of our most recent additions to the Employment Group in Waterloo. She's a fabulous associate. I am lucky enough to be her formal mentor and she's a wonderful mentee. Hina is I believe fourth year, Hina? Correct me if I'm wrong.
Hina: Going into third year.
Bettina: Okay. Well, you practice as though you're at your fourth year level. Anyhow, welcome, Hina, and please, at home, give Hina a little round of applause and off you go, Hina. Thank you.
Hina: Thanks, Bettina. So today I'm going to cover what the vaccination requirements are, mostly in Ontario and in the Federal sector, and then like Bettina said there are slides for the other Provinces, that I won't go through, but they're here for you to see when you need to do. In terms of what the vaccination requirements are in the Federal sphere, the Government of Canada will actually require employers in the Federally regulated air, rail and marine transport sectors to establish vaccination policies for their employees. So what this means is that airlines and airports, as well as other organizations who have employees that enter these restricted areas, would be covered by these vaccination policies, as well as Federally regulated railways which would cover rail crew and track employees, and then there's also marine operators with a certain amount of people on their crew.
In terms of the vaccination requirements, Federally, there is a short phase in period where there's an opportunity for everyone to get vaccinated, but eventually each organization is actually required to guarantee that employees are fully vaccinated or they'll be unable to work. There will be exemptions for reasons such as medical reasons, or religious reasons, but right from the get go the Government came out and said these kinds of exemptions are going to be granted in the most rarest of circumstances. So that's sort of where we are in terms of the transportation sector. In the public sector there is also a mandate that applies. So individuals need to be fully vaccinated by a certain date, and if they don't comply they could be subject to an administrative leave, without pay. The mandate for the public sector, it applies for the public service in Canada but that being said, the Government has made it clear that it expects Crown corporations, the National Defense and other similar institutions to follow this similar mandate. So that brings us to the private sector and what's happening here is all over the place. Different organizations have their own types of policies. Some are more strict than others. Very early on we saw that a lot of the major banks came out with their vaccination policies and there's more very day. There's the Canadian Blood Services, Canada Post, a couple of mines here and there, so the private sector, it seems like there's new policies coming out regularly. So next slide, please.
So that was the Federal sector, and in terms of Ontario, what you will see across the Provinces is it's fairly similar in the sense that there's only mandates for populations, or frontline workers, that work with vulnerable populations. So for example, in Ontario we have sort of a mandatory vaccination requirement in long term care homes, in particular. This would apply to all of the in home staff, support workers, students and volunteers. They're required to be vaccinated or show proof of a valid medical exemption, and if they have this valid medical exemption, then there'd be requirements to undergo rapid antigen testing, usually a couple of times a week. For the long term care sector I think it's at least once every 7 days. So there's no health sector wide mandate but it is for specific populations. Then in terms of the public sector, the Chief Medical Officer of Health actually released a directive called Directive #6 and it applies to things such as hospitals, ambulance services, home and community care service providers. All of these covered organizations under the Directive are actually required to establish a COVID-19 vaccination policy that requires full vaccination. So, again, there are people that can be medically exempt and if they are then they're going to be required to undergo rapid testing before attending work. Those are the main Directives and sort of guidance that we have. In school, if students are not required to be vaccinated for COVID-19, teachers mostly have to disclose whether they're vaccinated or not, and if they're not vaccinated they need to undergo, again, that rapid testing. It varies very much in the private sector.
One interesting thing about Ontario is that it came out with a regulation that requires business, as an organization, to comply with any advice or recommendation or instructions that come from the Chief Medical Officer of Health. So if the Chief Medical Officer of Health, or his or her Medical Officers in consultation with him, say you need to develop a COVID-19 policy for your workplace, your supposed to follow it. Since this regulation a lot of different Medical Officers have been coming out recommending that various employers do have a COVID-19 vaccination policy. So next slide, please.
So here there's a couple of slides just covering the other Provinces, that you can go over whenever you have time, but I won't go into them today. But there are similar requirements throughout with people working in vulnerable sectors, usually required to have some sort of vaccination policy for those employers.
Bettina: Okay. Yup, sorry Hina. I think it flips over to me now. So one of the other requirements, as Hina indicated, we have to comply with whatever public health organizations are recommending. One of them is screening, and we've had a few questions from clients recently asking do we still have to comply with the screening requirements, and is it passive screening or active screening? Right now the regulation in Ontario still requires active screening. So the difference between passive and active screening, passive would be you have a list of questions that an employee would look at and satisfy themselves that they don't have those particular symptoms or conditions; they haven't traveled outside of Canada, that kind of thing, and then they enter the workplace. We're not there yet. Hopefully we're going to get there but right now it's still active screening. So what that means is, as an employer, you're still obliged to ask certain questions of your employees and make sure that you know what their answers are. That doesn't mean that you have to stand there, in front of them, and ask the questions. You can do it by email. You can have a link where the employees have to go read the questions and then reply to you that I have no symptoms, haven't traveled outside of Canada or however you have the questions, either all yes or all no. That kind of thing. But you do have to make sure that before someone enters the workplace they are answering the screening questions. Ontario has just put out a new set of screening questions. So you don't have to follow those particular screening questions but there's a tool on the Ministry of Health website, and you can actually use that if you haven't developed screening questions for yourself, and there's a link so that once the employee's go through the screening questions on the Ministry of Health website it can be emailed to you. Next slide, please.
Hina has just gone over that. We do have a requirement that all employers in Ontario have to have a written COVID policy. I was surprised to find out that a lot of clients didn't realize that they had to have this policy and are now catching up and having one put together. What we are finding is that some Provinces, and this will likely transfer into all Provinces and Ontario, moving away from just COVID-19 policies to any communicable disease. Okay. We're going to start talking about, sorry Hina, you're going to talk about religion and creed in a moment. The next two big issues that seem to now be in the forefront with respect to vaccination and whether or not you can ask vaccination status, medical information and our human rights. One of the things that we were really curious about initially was what are the Human Rights Tribunals going to do with this? Because we know that under certain circumstances you're not allowed to ask for medical information. That, in and of itself, can be considered discriminatory under the Human Rights Code and what do we do about people who don't want to become vaccinated for religious, creed based reasons, medical exemptions? That kind of thing. Next slide, please, Jeff. Thankfully, most of the Human Rights Tribunals and Commissions across Canada, and in particular Ontario, have put out guideline statements as to what they believe is acceptable with respect to COVID-19. Hina, I'll turn it over to you to just give a brief overview of what the Tribunals are saying.
Hina: Right. So what we have up here on the slide is what the Ontario Human Rights Commission is saying. What they're essentially saying is requiring proof of vaccination, at work, is acceptable as long as there's protections put in place for those that are unable to be vaccinated for human rights related reasons. So they gave an example of someone who's unable to be vaccinated, having an alternative accommodation in place such as, rapid testing or COVID testing in the workplace. So this statement's really important because it does show that the Human Rights Tribunal and the Commissions supports the vaccination requirement. It's not offside, from the human rights perspective, as long as it takes into account persons that are covered by the Code and accommodations for those. Next slide, please.
As Bettina mentioned, there's basically two grounds where an employee can claim protection under Human Rights legislation. So there's disability and this covers medical and then there's creed, so this covers things like religion. So I'm going to talk about creed in a little bit but I think Bettina's going to cover medical disability first. So next slide, please.
Bettina: Okay. Thank you, Hina. One of the things that I was going to say in respect of the two, as Hina mentioned, so far no one has come up with any other protective grounds of their human rights. It's religion, creed or medical exemption. If an employee comes to you and says, "I'm protected under the Human Rights Code. You can't ask me for this information. You can't require that I become vaccinated or undergo testing." Then you pretty much know that there's only two exemptions that you have to worry about. If they try to suggest to you that there's something else, they're likely wrong. Even with the two exemptions that I revealed, they're very limited. So I'll talk about medical exemption right now. There have to be pre-existing conditions, and the slide goes through what the Ontario Public Health Organization has publicized as legitimate medical conditions that a person may have, preventing them from being able to be vaccinated. Anything other than these medical conditions, it's very suspect as to whether or not they really cannot become vaccinated. That doesn't mean, however, that you should be getting into a debate with your employee. But what I will say is, when vaccinations first started becoming a big issue, and very recently as employers are now requiring them in the workplace, employees were turning up with notes from various clinics around Ontario who were just willing to write a prescription or a note for the employee saying, this employee cannot be vaccinated due to a medical condition. What I would suggest to you is that you don't have to accept that. You still can't ask where the employee's medical diagnosis. So, for example you can't say, do you have thrombosis or myocarditis? But what you could require is that the employee return and get a note from the medical professional with the medical professional certifying that the individual has one of the enumerated conditions on the Ministry of Health website. If they don't then you could question, you could certainly go back and question, whether or not they ought to be vaccinated and you're in a good position to do deny the accommodation on that particular basis. I just want to make sure I've got all the notes. Oh, the other thing is the medical profession, in Ontario at least, has also now been advised by the Ministry of health that they ought not to be providing medical notes for employees indicating that they can't be vaccinated unless they do have one of these conditions. So hopefully we can start to trust a little bit more what we're seeing from medical professionals. Also in terms of publications under the Human Rights Code, so far we haven't seen a lot of decisions from Human Rights Tribunals, other than determinations by Human Rights Tribunals in other jurisdictions where they have a preliminary screening process. Meaning that the Commission could kick out applications at an early stage because they don't meet certain criteria in order to bring a human rights application. There are a lot of applications that are being kicked out because, for example, there's no causal link alleged between a person's medical condition and the adverse treatment by the employer. All of that to say that it's very, very unlikely that they're going to be many employees who are going to be successful in bringing discrimination or failure to accommodate claims based on the requirement to become vaccinated. There's a very, very small percentage of the population that will fit within the medical exemption. Unfortunately though, thousands and thousands of people across the country are trying, so the Human Rights Tribunals across the country are becoming incredibly backlogged, and it's resulting in a delay in other types of human rights applications that are going forward because they're having to deal with this backlog. So just keep that in mind when you've got a different type of human rights matter that you're dealing with and it's taking a year before you even get a mediation date. Okay next slide, please.
Alright, again, we're just looking at the medical criteria that is publicized on the various Provincial websites. Oddly enough, every Province has listed their own medical conditions that qualify as one resulting in an individual not being able to become vaccinated, but generally speaking they're quite similar. Then moving onto slide 22, please, and then I'll turn it over to Hina.
Hina: Thanks, Bettina. So like Bettina explained, there's only two grounds right now that an employee can bring a claim under for COVID-19 vaccination. Medical disability is fairly restricted but creed is a little bit more complex. Creed is actually not defined in the Human Rights Code so it's hard to know exactly what is covered. What is covered by creed has been developed through cases over the years, and so courts and tribunals often agree that religious beliefs and practices would fall under creed, but there's also things that are non-religious belief systems that could fall under creed. So it's relatively nebulous compared to something like a medical exemption, but there are a lot of different factors that a tribunal would look at, to determine if something falls under the ground of creed. I won't go through all of them today but there's things like whether it's a comprehensive overarching system; whether it really deals with those ultimate questions of human existence. Things like that, that go to whether something could fall under the ground of creed. The way it's been coming up in COVID-19 vaccination is some people have been saying that they can't be vaccinated due to their religion or creed. But there's very few religions that ban vaccinations altogether. There are a couple denominations that have a tradition of denying vaccinations or immunizations, but for the most part they don't have a large following in Canada, at least. What we're seeing more often is that some people are saying that their creed or religion prevents them from being vaccinated based on certain byproducts, or things that are either in the vaccine, or things that were used in the development of the vaccine. So this is a harder one to deal with, because although the vaccine doesn't contain a lot of these ingredients that some people are worried about, in the development and testing of the vaccine there are certain things that are used in the scientific process. So if someone says there might have been stem cells used in the testing of the process for vaccination, in developing the vaccine, they might try to bring that up as a reason that they're unable to receive the vaccine. So these are sort of more complicated and developing issues. Another difficulty with creed exemptions is what kind of documentation do you have to ask for and can you accept? It's not as straightforward as a medical or disability exemption, where you know you're going to go to a doctor or nurse practitioner, they're going to give you a note and what it's going to essentially outline. In terms of creed there really is no standard set of documentation that you're going to be looking for. So what we've been seeing is people going online and finding something, printing it and saying, "This is my creed and this is the reason I can't be vaccinated." So this is why a lot of employers, HR professionals are pushing back on the type of documentation that employees are bringing because you can challenge it, to an extent, especially if there's a good faith reason to believe that it might not be valid. So this is, again, a pretty complicated area and if one of your employees brings up the ground of creed, it takes a bit of an assessment to see if this is something that's valid or not valid. So next slide, please.
Luckily the Ontario Human Rights Commission has tried to add some clarity to how the ground of creed might be effected in the COVID-19 context. So the Human Rights Commission came out and said that personal preferences and singular beliefs are not protected under the ground of creed. So we see this all the time with people just specifically not believing in the COVID-19 vaccination, for a variety of reasons. The Tribunal has said that if someone does not want to be vaccinated based on something like a personal preference, that doesn't fall under the Human Rights Code. So an employer is not required to accommodate that employee based on their preference. So that's a really important statement from the Tribunal, knowing that what is and is not covered under the ground of creed. A lot of the other Commissions across the Province, or across the Country, have come out with similar statements. I know there's been one in Alberta, New Brunswick, they all generally echo the fact that a singular belief is not protected under the relevant Human Rights legislation in their Province. Next slide, please.
Like Bettina said, the Tribunal is fairly backlogged at this point. Just getting cases heard. So a lot of the cases that we have seen so far are just the masking cases that have now made it to the Tribunal and now have a decision. One of the earlier cases that came out is Sharma and Toronto City and this one came out in 2020. This was a case where the applicant refused to wear a face mask when he was going to several different stores around Toronto. The applicant alleged that he was discriminated against at these various stores because of his disability and because of his creed. So the way that the applicant actually described his creed, he said, "My creed disagrees with covering my face for unsubstantiated claims." He said that his creed requires that he doesn't blindly accept what the government or agencies claim and make into laws. He said that it was part of his creed and part of his civic duty to the critical of the government and its decisions. So after this explanation the Human Rights Tribunal found that the ground of creed was not engaged. This was more of a singular belief or a political opinion that just didn't fall under that sort of comprehensive system that you would need to follow under the ground of creed. The applicant also brought up his disability as a reason he could not wear a mask, and the Tribunal found that the ground of disability was engaged, but the applicant actually tried to bring an application against the City of Toronto because they're the ones who have the bylaw. But what the applicant really should have done is brought a claim against the parties that were actually, he alleged, were discriminating against him. So these various store owners, or stores across the city, but he didn't do that. So because he named the wrong party ultimately the Tribunal dismissed his application. So, yeah, dismissed his application and this was one of the earlier cases that really, after this case, a bunch of other cases came where applicants were claiming creed or they were claiming disability, that the Tribunal just quickly dismissed. The Tribunal found that in a lot of these cases the ground of creed just was not engaged.
Here is another case from this year. It's called Dube and Dutch Love Cannabis. This is another mask wearing case that also involved creed. So the applicant explained his creed to say that he has a belief that requiring wearing a mask does harm to him, medically, physically and spiritually. Again, the Tribunal found that this didn't fall under the ground of creed and I posted a paragraph here on the slide that actually refers back to the Sharma decision. Basically saying that the applicant here, he disagreed with a health mandate, and having a philosophical disagreement doesn't amount to engaging the ground of creed under the Human Rights Code. This reflects the theme that you'll see in the Tribunals, say all the time, that the Tribunal doesn't have the jurisdiction to just deal with general allegations of unfairness. The unfairness has to be connected, at least in part, to one of the grounds that are specifically set out in the Code. If the unfairness can't be connected to one of the grounds in the Code, likely discrimination will not be made out, and the Tribunal will dismiss the case. So next slide, please.
So those were some of the Human Rights Tribunal decisions that we've been seeing in Ontario. There's also been a little bit of case law that's now coming out across Canada. One of the cases that got a lot of attention recently is Blake and the University Health Network. This was a case where unvaccinated workers at a Toronto Hospital, they actually asked for an injunction, and they didn't want to be terminated by the deadline that they had to be vaccinated. So they went to court. They asked for an emergency injunction and they actually got an injunction for about 6 days. Justice Dunphy granted this temporary injunction until they could actually have a preliminary hearing on jurisdictional issues. Could the Judge actually make a decision here? So they were granting the exemption for about 6 days, and then they went back to court, and ultimately the court lifted the injunction and said he doesn't have the jurisdiction to deal with this sort of thing. What's really important about this case is that Justice Dunphy explicitly said at the beginning that, "I am not ruling on the vaccination policy or to validity at the University Health Network." He was specifically dealing with the issues of an injunction, so it is a narrow decision but it is one of the first ones that we have, so we're watching it and keeping an eye on it to see how it develops. There's also been other legal cases that are coming out. There's been constitutional challenges that are being brought by various advocacy organizations. For example, the Justice Centre for Constitutional Freedoms, they recently launched a challenge against the Province's proof of vaccination mandate. So the vaccine passports. Next slide, please.
There's been a couple other injunctions and in other Provinces across Canada. In Quebec there's been a challenge in the context of healthcare workers. In Saskatchewan the Province was actually successful when persons were challenging their proof of vaccination policy. The individuals didn't get the injunction that they were asking for because the Saskatchewan Government found that the policy was in line with legislation and the Charter. So we see that these sort of constitutional cases, these injunctions, are slowly coming in and the trend seems to be that the policies are doing okay for now, but again, it's very early days and we're still waiting for more information and more guidance from the courts and tribunals. So, again, on this slide I just have a couple more cases. There was another constitutional challenge in British Columbia and there was also a ruling in Manitoba this year about the Province's Public Health Orders. They were not found to be unconstitutional and they were found to be okay. So like I said, these cases are still coming in, and they're slowly starting to trickle in, but we'll see. It looks okay for now but we'll see what guidance the courts and tribunals provide to us. So if there's anything else Bettina wants to add to these cases, otherwise I'll just turn to her for the next part.
Bettina: Thank you, Hina, that was great. I think what we're starting to see is a trend towards acceptance of vaccination requirements across the country and, I think for a lot of us, we're starting to have a great sigh of relief just wanting to know one way or the other what are we supposed to do here. It's wonderful that we're starting to see some decisions come out. So now just getting into some practical day to day issues, questions that we're seeing from clients, as people are coming back to work and work developing vaccination policies and things like that. Many of you, if you have implemented vaccination policies in your workplace, you might have received one of the lovely notice of liability letters that someone has either crafted themselves, an employee has crafted themselves, or they've gone on the internet. We have had clients who have received the very lengthy ones that seem to be passing around on the internet, that site violations of every piece of legislation under the sun, from the Human Rights Code to the Nuremberg Charter and what we tell our clients, at first because they're alarming because they have in big bold letters, "WE'RE GOING TO HOLD THE COMPANY LIABLE AND YOU, AS THE HR PROFESSIONAL WHO IS ENFORCING THE POLICY, WE'RE GOING TO HOLD YOU PERSONALLY LIABLE FOR ALL OF THIS." Don't get frazzled. It's a bunch of bunk. There are, of course, legitimate legal issues associated with requiring employees to become vaccinated but the vast majority of this stuff, that is contained in these letters, is just inflammatory and it's wrong. Despite the fact that it's wrong you shouldn't ignore them. You have to engage with the employee in a discussion about why the vaccination policy is in place, the merits of the vaccination policy and a lot of times what we're finding is that people have become so militant about their personal rights, which isn't a bad thing, but they're not actually reading the full contents of the policies that their employers are implementing. I would say that the vast majority of policies that have come across our desk, or the conversations that we're having with most of our clients, is that, yes they have a vaccination requirement but they also have a testing, a rapid testing, requirement for those who don't wish to become vaccinated, or for those who cannot become vaccinated. I'll get into that in more detail.
So for the individuals in your workplace who are coming and presenting you with one of these notice of liability letters, it's a matter of educating them on the steps that can be taken within your policy. The other thing that we're watching, as legal counsel, are the bulletins, the blogs, the articles, the newspaper articles that are going out there, primarily from the plaintiff sidebar because we as defense lawyers want to see what is it that our employees are being told, and what are we going to be facing as lawyers in terms of arguments that plaintiff counsel are going to be making, as litigation starts to ensue over vaccination issues. Which, for sure, it will as employees start to become terminated, laid off, things like that. Surprising for most of us, in the Ontario employment bar, Mr. Howard Levitt for those of you who have heard his name before, seems to be on our side in terms of helping employers send a message to employees that, employee you're going to have a very hard time bringing a legitimate claim against your employer, who's trying to enforce vaccination or otherwise occupational health and safety measures, to keep the workforce safe and the general public safe. But that doesn't mean that the entire plaintiff bar is on that side. We still have a lot of plaintiff lawyers out there who are indicating that they will, absolutely, go for the jugular for employers who are trying to implement vaccination policies and who take adverse action against their employees such as lay off, rejection and impound, or termination of employment. We'll get into those issues very shortly. But just to give you an idea of what the plaintiff bar is indicating out there right now.
Let's talk about mitigating liability with respect to vaccination and policies. Every employer should have one, really. It's like any policy although vaccination policies are not always mandated in every single Province. Policies are always a good idea to have because it sets out for the employee, in very clear language, what the expectations are, what the processes are and what the consequences are going to be for not following the policies. In terms of whether or not you should be requiring vaccination of your employees, yes the trend is full vaccination, but you should only require it of employees who are actually going to be physically interacting with those either in the workplace or outside of the workplace. If you have an entirely remote workforce, who are never really going to be interacting physically with one another, where you have sectors of your workforce who work from home permanently and not just because of COVID, there's really no reason to require vaccination. So if you were to take adverse action against those employees for failing to become vaccinated, you could absolutely face liability, in terms of changing terms of employment. Not in a human rights realm, unless they have a legitimate protected grounds but, overall with respect to wrongful dismissal, constructive dismissal, things like that. Whether or not you implement a full vaccination policy should not be dependent on whether or not you can have workers on home. So let me put it another way. You don't have to offer remote working to employees who do not want to become vaccinated for reasons other than medical or creed religion reasons. You are entitled, as an employer, to require your employees come to the workplace even though for the last 2 years it's worked fine with them working at home, in front of their computers or the kitchen table, you're still allowed to say no, we expect you to come back to work and as a condition of coming back to work, you must be vaccinated. That is not without risk though and we'll talk about how you can potentially mitigate that risk as well.
That is offering testing. So how we kind of look at this, in terms of liability, is in tiers. So if you require a full vaccination, and you have to be fully vaccinated in order to come to the workplace you really have to be able to justify that have. Having legislation backing you up helps within the healthcare industry or at the Federal level. Or you have to have the type of workplace where individuals are going to be working in close proximity with one another, and rapid testing is an alternative, just isn't a safe way to proceed. That's the advice we're giving right now because, unfortunately, we don't have any decisions from the courts yet, or the Labour Board, as to whether or not truly full vaccination requirements are going to be permitted without any repercussions for employers. If you can offer rapid testing as an alternative, do so, because that will reduce your risk of liability to employees for changing terms of employment or unilaterally imposing adverse consequences on the employees for failing to become vaccinated. What a lot of clients are doing, and what we're advising some of them to do right now, once you initially issue your policy, even though this has been coming for a long time and many employees have known about it, they still need time to get their minds wrapped around the policy, particularly if they have not become vaccinated yet. So you can give a deadline, the date by which an employee must become vaccinated, if they don't, if you can rather than just outright terminating their employment, place them on an unpaid leave of absence. That's the next step down in terms of liability. You can let the employee know that during this time we may need to engage in a recruitment process to replace you. Be as transparent as you possibly can with them so that they know that there may be a consequence for them, and you're not just going to have them on an unpaid leave of absence indefinitely, and continue to keep them updated. Okay, we found a candidate. We're giving you the option now of becoming vaccinated so that you can return to the workplace otherwise we may have to go ahead and hire this individual. Again, it's not foolproof, it's not a guarantee, but that's going to eliminate your risk for liability but it's another way to show that you were making best efforts in doing everything that you could do to save this individual's position before ultimately terminating their employment.
The concept is that every alternative that you provide to the employee, and they refuse those alternatives, so for example if you offer rapid testing as opposed to vaccination and they still refuse both, then you're in a much safer position to either place them on an unpaid leave of absence or even to terminate employment for cause, because you've offered very reasonable alternatives for them. Alright next slide, please.
Sorry, Jeff, you had actually moved ahead. Can you go back to the rapid antigen testing slide? Okay. Rapid antigen testing. I'm sure a lot of you know about it. I have just cut and pasted the language from the Ministry of Health website that describes what rapid antigen testing is. So you can have a look at that and that is something that if you have employees, if your offering it and employees are concerned about what it is, what does it do, you can direct them to this website. Okay, we can go to the next slide. If you are going to implement rapid testing at work as an alternative to employees becoming vaccinated, the testing should be done onsite. It can be done at home but you don't know whether or not the employee is doing it properly if it's done at home. It's also going to require the employee to bring in the test and they might forget. It just adds a layer of I guess logistical problems free so it's best to do it onsite, at work. There are training videos that you can watch on the Ontario Ministry of Health website to train someone in your workplace who can oversee the administration of the test. You can also allow employees to do it on their own, at work, but they should watch one of the training videos as well for conducting a self-test or doing it themselves. If at all possible you should have a room set aside, or screened off area, where employees can go and do the testing. It's suggested that you have staggered times for doing the testing, so that it's not required as soon as everybody gets into work, or you're going to have a big line up. The testing can be done as many times as you want during the week. It's recommended that it be done 2 to 3 times a week, but no less than once a week, if you're relying on that to screen employees who are unvaccinated. The other thing to keep in mind is that because the tests require a nasal swab, the test kits themselves, are considered biohazardous waste and so if testing is being done at work, or if you're collecting the kits with the results on them, they have to be disposed of in accordance with the Environmental Protection Act and there's a link there on the slide that shows where you can go to get information about how to properly dispose of the test kits. We are often asked who pays for these kits and who pays for employee time while they're undergoing the testing? There's really no excuse for employers requiring employees to pay for rapid test kits, if they make this a requirement under their policy, because very Province in Canada is offered free test kits to employers. On the next slide, I believe, we can, nope. I forgot to put it in. Sorry, you can go back, Jeff. We can send out the link but if you just Google how do I get free test kits you will be able to find a link, or on the Ministry of Ontario website, where you can apply for free test kits. Now in Ontario there are conditions and strings attached to getting these free test kits. Some Provinces just give them for free. Others require you to engage in studies and things like that, and have conditions attached to getting the free test kits, but all of that to say so long as they're free you're really not going to be able to charge employees for it. Again, we don't have anything yet legislated on that point, but I would imagine that there would be a successful complaint to the Employment Standards Branch if you started requiring employees to pay for their kits. In terms of the time it takes them to do the testing, again, it's our view that if they're doing it as a term of employment because the employer's requiring it, it's work time and it has to be compensated. Okay, next slide.
Okay. Some of the other questions that we're getting often is, what exactly can we ask for from employees with respect to their vaccination status and their test results? Because it's medical information many employees feel very uncomfortable about disclosing it and we, as employers, don't really love having to collect this information and store it and be liable for it as well. What are our obligations? This varies depending on the Province that you're in because this really is about privacy laws and, of course, we don't have Federal privacy legislation that governs Provincially regulated employers, which the vast majority of you probably are. If you're Federally regulated, if you're in banking, telecommunications, transportation, things like that, then you're governed by PIPEDA and you have privacy obligations under PIPEDA. If you have employees in British Columbia, Alberta and Quebec then you have restrictions around the types of information that you can collect with respect to your employees which includes force back status on the testing, the results of their test. If you have an in house nurse, in any Province, who's collecting this information, doing the testing for you, then you're caught under all Provincial, or the applicable Provincial, health privacy information. Oddly enough, if you have an HR person who doesn't have a medical degree or certificate of any kind, then you're not captured under the Provincial health information restrictions. But like I said, if you have a nurse on site who's doing it, then you are. This doesn't mean that you can't do it. It doesn't mean that you can't collect the information. It just means that you have greater obligations. What that means is you have to employee consent to do it and we would recommend that you don't rely on implicit consent, which simply means we require you to test, and so the employee engages in the testing and therefore you have their implicit consent to do it. What you should do is, as part of our policy rollout, develop a consent form that the employee signs and says I agree to undergo rapid testing, or I agree to disclose my vaccination status, and then you've got a written consent and you can hang onto that. In terms of maintaining the QR codes and the actual test results, you don't have to keep that. I think there's a misconception by employers out there that you've got to actually maintain that information or the actual code, the actual document from the various Ministries, indicating that the person has been vaccinated. You don't. Once the employee shows it to you, you don't even have to collect it, if they just show it to you, you can destroy it. You can just have a document, a piece of paper or an Excel chart, that ticks beside the person's name that they've been vaccinated. You don't have to keep the QR code. If they send it to you by email, delete it. Your obligations are to secure the data that you collect and so if it makes you nervous that you don't have proper security, then somehow record what it is that you think you need to know, which is just for status; they tested negative, tested positive, they've been vaccinated, have not been vaccinated, and get rid of the other stuff. You have to do it in a way that it's absolutely deleted, destroyed and anonymized so that there are no security breaches. But then you're covered. Okay. Next slide, please.
How do you mitigate liability when your customers are saying that they have certain requirements? So we have come up against this with many other clients who have their business is a service provision themselves, or they have to go out to client sites to do training, repair machinery, that kind of thing, and their customers are requiring full vaccination or testing in order to go into their workplaces. What I will say is that unless there is a reasonable necessity for the person to become vaccinated or test to go into that workplace, a customer's demand in and of itself, is not legal justification for you to require your employees to do something. There are, however I would say, going to be very few situations right now where it would not be reasonable to either require your employees to become vaccinated or undergo testing in order to enter a customer's workplace. I'm just bringing this up because it doesn't give you a get out of jail free card just because your customer is requiring it. In certain circumstances we're also seeing that customers are requiring that they be provided with vaccination or test results of the employees who are going to be entering on their site. You cannot provide that information to your customers without your employee's consent. That would be either a breach of their terms of employment or, if you're in a Province where there is privacy legislation, it would be a violation of that legislation. So you do need express and informed consent before you disclose that information to any third parties. Informed consent means that you've disclosed to the employee the who, what, where, why and when with respect to the data. What are we collecting? Why are we collecting it? Who is going to have access to it? How is it going to be stored and protected? When is it going to be destroyed? Who can I contact if I have a questions about disclosure or collection of this information? You should also try to limit the amount of information that you're disclosing to the least amount possible. So for example, if the customer is requiring the QR code, then you should really be having a very hard conversation with that client and push back and say, "Why do you have to have the QR code? Can't we just provide you with an attestation that the employee has been vaccinated?" and find out why they really need that for their information. If they just insist on it, then find out what they're going to do with it. After they get it are they going to destroy it right away? Because even though of course your business wants to keep that relationship with the customer, you have an obligation to protect your employees as well.
We also received questions as to what do we do if an employee just flatly refuses to consent with no legitimate reason and the customer does have a good reason as to why they need the information about vaccination status or testing? In those situations, again what we're suggesting is, that if the employee has no good reason for not wanting to disclose that information and they're just saying, "Because, it's my right, it's my privacy right." then we feel that you have very low risk if you warn the employee, "Look, this is going to result in us having to change your duties which may result in a lower income. You may have to be placed on a leave of absence because our customers just won't let you on their site and therefore you are the one that's impacting your ability to be able to perform your duties." Okay next slide.
The next one is dealing with remote working and nomad policies. This really doesn't have anything to do with COVID, it's just become more pronounced as of a result of COVID. What we've seen over the last couple of years with workforces being sent home, and having to work from home, is the belief by employees that they can just go and work wherever they want. In a different Province. In a different country and they don't really have to tell their employer that they've done that because everybody is working from home anyway and it's all the same. Well, that's not true for you as the employer, and it's not really necessarily true for the employee either because when we move into another jurisdiction you engage laws and trigger laws in those jurisdictions, that after a particular period of time will now apply to the employment relationship and those laws could be anything. Employment laws, occupational health and safety laws, tax laws, securities laws if you've got securities plans, all kinds of different things are triggered. So what we're now advising employers to do, if you're going to allow people to work from home, remotely on a temporary basis, you absolutely should draw a written agreement with them. Don't rely on policies alone that says, here's what's going to happen if you go work from home. You should have a signed agreement with the employee that sets out that you can require the employee to come back to the workplace at anytime, with notice or without notice. You can require the employee to cease working remotely at anytime and come back to the workplace permanently. Also, very importantly, that the employee must continue to work for you in the Province that you have agreed upon and that they may not move out of that jurisdiction without your written approval. Unfortunately we've had circumstances where our clients have found out, 3 months later, that somebody's moved from Ontario to British Columbia and now we have to scramble because the client has no employees in British Columbia, and now they have to get used to dealing with British Columbian law and things like that. If you have a term that says that you can't do that then of course that could be a ground for termination of employment. You're not obligated to allow them to do that. The final thing to mention is that if you decide to have a hybrid policy, or permanent remote workforce now as a result of COVID, because you've realized that it works or you've got staff that really enjoy that and you're going to allow that to happen, you still have obligations under the Occupational Health and Safety Act where home workplaces or remote workplaces, Ontario is one of the jurisdictions where there is no exception for remote workplaces. That may come to pass very soon given how many people are now working from remotely. But as of right now you have the same obligations while they're working at home as you would if they were in the workplace. Alright. So that concludes the formal presentation. Hina has created a slide that has information that we've prepared at Gowling. Resources for you with respect to various COVID-19 issues. I guess we can open up the floor for questions though I think we're now over time.
Jeff: I actually think we have this scheduled until 10:30 so we do have a little bit of time for questions, which is wonderful ,and I would encourage anyone that would like to turn on the camera or unmute themselves and ask any questions to do step in. There was one received through the chat. I'm going to ask it as it was asked and hope that you might understand a little bit better. So assuming that someone is attempting to secure document to support their creed grounds, but they refuse to participate in rapid testing, what would you recommend? You're on mute, currently.
Bettina: If I understand the question correctly, they're refusing to become vaccinated because of creed grounds, but there's really no creed base reason why they couldn't go undergo rapid testing. If you're telling me that the employee is saying, "No, no. My creed prevents me from undergoing rapid testing as well." I don't see how that's possible and I would deny that accommodation request. So the advice that I would give is tell the employee that, fine. We'll accommodate your religious creed base belief. You don't have to become vaccinated but you do have to undergo rapid testing. If you refuse to undergo rapid testing here are the consequences and, once again, you can place them on an unpaid leave or you can terminate their employment. There are plaintiff lawyers out there who say if you terminate their employment you better do it on a without cause basis. Howard Levitt, however, and it's my opinion and I say Howard Levitt because he's one of the most pro-employee lawyers out there, he says, no. Terminate for cause and I tend to agree with that. I can't say though, don't go around saying, "Well, Bettina said we could do this." because we don't know yet what the courts are going to do but, I've said this a thousand times in my career, I would be shocked if a court didn't uphold that termination for cause because the employee's refusal, in my view, is unreasonable.
Jeff: Thank you. So we do have a bunch of questions now coming in to the chat, so I do encourage if anyone does want to ask in person, please feel free to. I am happy to have these conversations as well. This one's an interesting one. So for offices, if we've been working remotely to date how do employers build a case around the Ontario Health and Safety Act for going back to the office? And they say moving down the order of hazard control such as vaccination policies, barriers, masks as being necessary and reasonable. I kind of read that as, how is there a case to go back to the office where risks are slightly higher because you're obviously now in contact with other people where you're not at home?
Bettina: The Ontario Government, we sought a lot of guidance from the Ontario Government as it moves to open things up, and when the Ontario Government says people can go back to work, then it's our view that they're safe to require people to go back to work, so long as you can continue to follow the protocols that are issued by public health. If you veer off those protocols then you're going to be in trouble under the Occupational Health and Safety Act but as long as you are vigilant in enforcing those protocols like masking, screening, disinfecting, telling people to socially distance, that type of thing then you should be fine under Occupational Health and Safety legislation. There is no requirement, anymore, that you cloister at home. You can require them to come back to work now.
Jeff: Thank you. So another question, some of the earlier requirements for staff who refused the vaccination must have a formal education session in addition to rapid testing, is there a formal education session available from either the MOH or the MOL that can be used or is the employer to create their own?
Bettina: So that requirement was for organizations or employers who were legislated to vaccinate. So, for example, healthcare, long term care facilities and things like that who were required to implement vaccination policies. If the employee refused to become vaccinated they are required to undergo an education session. That, and Hina correct me if I'm wrong because you know the legislation better than me, that's not required in all workplaces right now, the education session. Though it is a very good idea, you can require employees to do it, and I do believe, Hina again you know better than me, there are videos that have been put out by the Government, are there not?
Hina: Yes. So when the Government released Directive #6 around hospitals, long term care homes, one of the requirements was to make available an education session. The Directive #6 goes through what should be in an education session, with the aim of the employer providing it themselves. But there's also an accompanying document that provides some links. So it has links to videos. It has links to different, I think there's a 12 part session in one of them. There's no one particular education session that's endorsed by the Government. So it's not like directly from the Ministry of Health or the Ministry of Labour, but there is a full page of resources that the Government has provided, but employers can look through and kind of choose which one they want for their workforce.
Jeff: Thank you. Another great question here is if two employees share an office can we allow them to remove masks when they're both vaccinated and seated at their desks more than 6 feet apart?
Bettina: I actually don't know the answer to that question. Hina, do you know?
Hina: Well, if you're following all of the other public health requirements, if you're 6 feet apart I want to say yes, but again, that's a good question because they're two employees, not from the same household. I guess if you can maintain the distancing I'd be more comfortable with taking off the masks. But, yeah, that's a good one.
Bettina: Jeff, can you make a note of that question? We can look into it and see if we can find any answer. We may not be able to. May be one of those things that falls into are you still taking reasonable precaution from the Occupational Health and Safety Act? In my view I would be okay with that on that ground but we can look into that to see if there's any legislative requirement to maintain that.
Jeff: Okay. Wonderful. I'll certainly make a note. I'm trying to go back to the question to see if they put publicly or not and invite that person to certainly reach out to you though, the asker of that question, please do feel free to reach out directly. There's lots of good ones. So here's one about our workplace has two unions. One has taken the position that they must be vaccinated and all the members have done so. The other has taken a stand that employees are not required to be vaccinated. They say we may have most employees that have been vaccinated but two remain unvaccinated and they've been reluctant to implement the vaccination policy to date. There wasn't a specific question there but I guess it's kind of how do you recommend they navigate around that?
Bettina: Hina, you had mentioned the case that came out. It was the hospital. No, that was the injunction case. There was a case that came out recently where union grieved a vaccination policy and they were shutdown. The Labour Board held that the vaccination policy was reasonable. I'm right about that, right Hina?
Hina: Yeah. It's ringing a bell. There's been so many of these labour cases.
Bettina: It was in the last couple of weeks that the decision came down from the Labour Board. I can't remember exactly what union it was but the objection, of course, was that it was overreaching in terms of the general management provisions in the collective agreement and the Labour Board held that no, having a vaccination policy was not in violation of the collective agreement. I think we're going to see more and more decisions like that. So, again, while I can't guarantee that your union isn't going to be successful I think that they're going to have a hard time. Especially if you have other unions in the same workplace saying, no, we think that this is the right way to go.
Jeff: Wonderful. I've now received some comments about that masking question. The two people in an office saying that there's a number of people that would be interested to hear that answer. So maybe we'll try to get an answer in time. When we send out a copy of the presentation we can have that included. There's one individual that's asked this question twice so obviously really wants it answered. The question is, can you require an employee to undergo rapid testing if they are working from home? I personally am struggling to understand why that would be necessary, so I'd invite that person to come online if there's more to it, but maybe you know of a reason why that might be important that I'm missing.
Bettina: I agree, Jeff, with your position. I don't know why you would require an employee who's working at home to undergo rapid testing unless they were going to be coming into the workplace. If they're not coming into the workplace I don't see why you would do it, and if you took adverse action against the employee for refusing to produce rapid testing results under those circumstances, I think that there's a much greater chance that the employee would be able to bring a successful constructive dismissal claim. Like you, Jeff, I'd like to know what the rationale is for requiring the testing.
Hina: One example of a rationale might be if that employee is required to go to other work related sites. They might want to rapid test before that particular event, but overall, exactly what Bettina said.
Bettina: Yup.
Jeff: I'm struggling to keep up with all these questions right now. This is wonderful. Here's one. We have a couple of employees that are not vaccinated due to personal preference. As an employer do we have a right to accommodate them at all to return to office?
Bettina: You may require them to return to office and you have no obligation to accommodate their personal preference. So those two points are very short, however, if you don't offer rapid testing as an alternative and you then say to them, you have to come back to work and in order to come back to work you have to be vaccinated, full stop. You're going to be placed on a leave of absence, or even more severe, we're going to terminate your employment, you may have to pay the employee out. The employee may have a constructive dismissal successful claim. You may have to pay them termination pay because you didn't offer the alternative of rapid testing. We don't know yet because we don't have a decision.
Jeff: You know what, on that point there's a question here, if an employee refuses to get vaccinated and doesn't have a medical or creed exemption, do you recommend that allowing them to continue with rapid testing should be considered first before placing on unpaid leave of absence as they're not complying with the vaccination policy? Really, should the rapid testing be the first consideration before placing on leave?
Bettina: It's the least riskiest approach for an employer. So you offer rapid testing. That's the least risky approach. If you want to take a less conservative approach and say, nope you must be vaccinated otherwise you're going to be placed on an unpaid leave of absence, then there is some risk for you. We don't know yet what the courts are going to do with that.
Jeff: A great kind of follow up to that is, if company offers rapid testing for approved human rights reasons, do they then also have to offer rapid testing for those who are out of personal preference choosing not to be vaccinated?
Bettina: No. There's no reason why you have to offer rapid testing just because you offer it to people as an accommodation who have legitimate human right complaint. But again, I go back to the point that if you don't offer rapid testing to everyone who doesn't want to become vaccinated, there simply is a risk that a court could find that you are not being reasonable in the terms that you're not imposing on your employees. Unfortunately we just don't know until we get a case from the courts on this.
Jeff: Great. There's some other comments about the masking in an office as well because of meeting spaces and things like that where trying to get people, so it's not just two people working together, it's also when people are in a meeting space. How to keep everyone safe. Here's a good one as well. What about the situation where we have employees and also tenants in our building? Our employees are double vaxxed but the tenant's employees are not all double vaxxed. I guess the kind of question is who's that responsibility on? Is it on the landlord? I'm assuming these are employees of another company that leased out some of their space. Who does that fall to?
Bettina: Right. Well, the landlord has obligations under a different legislation as do employers. I don't specifically know what their obligations are in terms of ensuring that all of the tenant are vaccinated. They would have obligations to ensure that the tenant's are complying with health requirements. But there's no legislation, yet, that depending of if you're in the healthcare industry or something like that, but if we're talking about a general office building where you've got say a law firm, you've got an accounting firm, whatever, you've got a tech company in there, there's no obligation, yet, in legislation that says that everybody have to be double vaxxed. So just because the landlord is allowing tenants in there who are not double vaxxed does not mean that they're violating any laws. They still have to comply with other requirements like screening, masking, disinfectant, that type of thing.
Jeff: Wonderful. One of the attendees, I think it's more just a statement one of the other questions, just mentions that an unpaid leave of absence could be constructive dismissal as well and that it would be better to offer them a reasonable alternative employment that includes compliance with the company's vaccination policy.
Bettina: Unpaid leave of absence absolutely could lead to constructive dismissal. Again, we were talking about steps of liability. It's less risky than terminating employment. So you've placed them on an unpaid leave of absence. For sure you have some risk of a constructive dismissal claim but a court, remember when you're imposing disciplinary action against an employee, it doesn't automatically amount to constructive dismissal. The court looks at the disciplinary action imposed in the context of the situation to determine whether or not it's proportional. So court may very well find that under these circumstances an unpaid leave of absence is a proportional disciplinary measure.
Jeff: Thank you and you know what? Because of time I'll make this the last question. It's, I think, a pretty straightforward one and a good one to end on. Can businesses require people visiting their office to be fully vaccinated?
Bettina: Yes.
Jeff: Okay. That's the answer I kind of thought. Wonderful.
Bettina: Of course, you have to comply with human rights.
Jeff: Of course. I think I made it through all the questions. My apologies if I did miss, for anyone that's on the call, if I did miss one. I would highly recommend if your question was missed, or if you have one that you didn't ask or didn't have time to ask, please feel free to reach out to either of our presenters directly. Within the presentation that we'll send out, has their contact information, but you can also find it online at gowlingwlg.com. I thank everyone for being with us today. We will send out a copy of the presentation and hopefully also have an answer to the masking question within an office space. So thank you everyone for joining us. I appreciate it and I hope you have a great rest of your Thursday.