Howard Levitt: Employers can set different rules for vaccinated, unvaccinated workers

By September 8, 2021 No Comments
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Employment lawyer Howard Levitt answers your workplace legal questions

You absolutely can. Subject to compliance with public health guidelines in all respects, you could have much more rigorous requirements for the unvaccinated, such as daily testing and requiring them to wear a full panoply of personal protective equipment, while the vaccinated don’t have to do either. Some have separate buildings for the vaccinated and for those who are not.

The reality is that the vaccinated are deemed by public-health authorities to be much more “safe” (and that is reflected in admissions to hospitals), so that more rigour can be applied as to where the unvaccinated are permitted access to and how.

Do you need a written vaccination policy?

At present, although legislation could change, it is not required, but I strongly recommend it. Having and enforcing a policy provides certainty, direction to your employees and protection from liability. The policy itself can provide much needed evidence that you have taken proper precautions and direction to employees if an outbreak nevertheless occurs.

What are employers’ present biggest challenges respecting COVID-19?

In my view, they are determining whether employees should be recalled to work, and how and what vaccination policies should be implemented.

Both mandatory vaccinations and requiring employees to return to work will result in many deciding to leave that workforce. This will exacerbate already existing challenges at a time when an unprecedented number of employees are resigning and employers are having difficulty recruiting.

On the other hand, many employers have found that, in the main and subject to exceptions, their work is not being performed as productively from employees’ home offices, and the greatest protection against lawsuits for negligence is mandatory vaccination, subject to medical and religious accommodations.

There is no-one-size-fits-all solution and the industry, employee base and a company’s own corporate culture should determine the right approach.

We have a mandatory vaccination policy and are receiving a series of medical notes suggesting that employees cannot be vaccinated. I do not believe they are bona fide. Is there any recourse against the doctor?

It will be difficult to prove the doctor did not have a good faith belief in what they were writing, and medical opinions as to what could be medically injurious are notoriously elastic.

I recommend your company retain a specialist and require the employee to permit that specialist to speak to their doctor. Unless there’s a substantive medical disability creating a real risk to that employee, it need not be accommodated. Getting a rash, feeling a little off for a couple of days, etc., are not the type of “disability“ that creates an accommodation requirement.

I am going to a close friend’s wedding in the United States and my employer will not permit me to work from home when I return and quarantine, but requires me to take my vacation instead. Is that permissible?

The employer, if it wished, could prohibit your attendance at the wedding entirely if it had good business reasons to require you to work during that time and you did not have the requisite vacation time available to you. You do not have the right to work from home during your quarantine if you were not already working from home as part of your employment.

Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.