Written on behalf of Peter McSherry
In a Ministerial Order dated April 9, 2021, Quebec became the first province in Canada to require COVID-19 vaccination and testing for certain employees.
The Order titled “Ordering of measures to protect the health of the population amid the COVID-19 pandemic situation” was issued under Quebec’s Public Health Act by the Minister of Health and Social Services and applies to certain front-line workers.
Under the Order, the targeted employees are required to provide proof of a COVID vaccination or undergo no less than three COVID tests per week and provide the results to their employer.
The Order applies to “salaried persons” in health and social services institutions who work in the following environments:
- emergency units, except psychiatric emergency units;
- intensive care units, except psychiatric intensive care units;
- clinics specific to COVID-19, including screening, evaluation and vaccination clinics;
- units identified by an institution as reserved for persons with a positive COVID-19 diagnosis;
- a residential and long-term care centres;
- other residential units;
- pneumology units.
If any employee refuses or neglects to undergo mandatory screening tests or to provide test results or proof of vaccination, they will be reassigned to duties within their job title in another environment. Where the person refuses reassignment or reassignment is not possible, that person will not be allowed to reintegrate the work environment and will receive no remuneration until they comply.
Ontario Has Yet to Make Vaccination Mandatory for Healthcare Workers
While Ontario has made efforts to prioritize the vaccination of frontline healthcare workers, it has, to date, not implemented a policy making it mandatory. In a document detailing the plan with respect to prioritization among those working in healthcare or adjacent roles, the issue of mandatory vaccines is addressed as follows:
COVID-19 vaccination is strongly recommended for all health care workers but remains voluntary. An employer may choose to create their own policies regarding mandatory staff immunization as a protective measure for residents and patients.
Employers, particularly those servicing vulnerable populations, such as long-term care facilities and the like, may wish to implement a mandatory vaccine program for any staff working directly with patients.
In a CTV report dated March 25, a top official at Toronto’s University Health Network defended the decision not to require vaccinations from workers. At the time, nearly 4,000 staff had not yet registered for vaccination, prompting the group’s president to call the number “worrisome” in light of increasing infection rates. However, despite the challenges in registering staff, the group’s Medical Director of Infection Control and Prevention spoke about the potential ramifications of making a vaccine mandatory:
You have to respect that people do have religious and medical reasons for not being able to or wanting to take the vaccine…The best way [to do this] is instilling in people the importance of getting the vaccine while still making it a voluntary thing.
It remains to be seen if more employers may begin to implement a mandatory policy in Ontario if the third wave continues unabated for much longer.
Mandatory Testing Challenged in Ontario Retirement Home
While Quebec is currently the only province to have made vaccinations mandatory for health workers, some Ontario employers have begun to require mandatory COVID testing for employees.
For instance, in a recent Ontario labour arbitration case, the union challenged an employer’s mandatory testing of employees working in a retirement home.
In that case, employees were required to undergo COVID-19 testing every two weeks using a nasal swab test. Any refusal to participate in the testing would result in the employee being held out of service.
The union filed a policy grievance, arguing the employer’s policy was both an intrusion on the employees’ privacy and a breach of their dignity.
While the arbitrator agreed that a nasal swab test qualified as an intrusion on of privacy and a breach of dignity for employees, the union’s grievance was ultimately dismissed. The arbitrator concluded by stating:
“In my view, when one weighs the intrusiveness of the test: a swab up your nose every fourteen days, against the problem to be addressed – preventing the spread of COVID in the Home, the policy is a reasonable one. While the Home had not had an outbreak, I agree entirely with the Employer that, given the seriousness of an outbreak, waiting to act until that happens, is not a reasonable option.”
Contact Peter McSherry for COVID Concerns in the Workplace
If you are an employee concerned about the legality of workplace policies, or an employer looking to ensure you stay compliant with health and safety regulations as they relate to COVID-19, contact the offices of Guelph employment lawyer Peter McSherry. We regularly assist employees with employment and labour issues. Contact us online or by phone at 519-821-5465 to schedule a consultation.