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You’re hearing conflicting reports in the news about a mandatory vaccination policy in the workplace.   

Legal experts are talking about liability risks.  

Growing numbers of public and private organizations appear to be taking a firm pro-vaccine stance.  

Employees are voicing concerns about not wanting to go into a hybrid workplace with unvaccinated colleagues.  

Other employees are voicing concerns about being forced to get a Covid vaccine. 

Every day it seems there’s something new. 

The jury is out when it comes to implementing a mandatory vaccination policy in the workplace to protect against Covid and its variants. So how the heck do you navigate this situation? 

Can an Employer Require an Employee to be Vaccinated?

It’s a tough call to make as more employees return to the physical workplace.  How do your people feel? Is there a consensus that this is a health and safety move? Or the perception that a Covid vaccine policy for employees is an infringement of rights?   

Issuing a return-to-work vaccine survey makes the employee stance clearer.  Feedback serves as a great resource when it comes to strategizing your approach. But you also need to know there are limitations around what you can and cannot do. 

What the Experts Say About a Mandatory Vaccination Policy

The legal consensus around mandatory Covid vaccine policies for employees is sketchy at best. Like most matters legal, “it depends” on a lot of different factors.  

Individual jurisdictions, to start, affect the rights of both governments and employers with respect to vaccination. Within countries that are democratic, human rights legislation and the justice system have an impact on the ability of the government to mandate compulsory immunization. And that has downstream consequences for the rights of employers. 

It really depends on the regime,” explains J.D. Sharp, a partner of Emond Harnden, one of Canada’s largest boutique-style labor and employment law firms. “Can China mandate a vaccine? Absolutely yes. It goes to the heart of legislation from autocratic rule all the way to democratic regimes with robust human rights. 

Sector Based Considerations

In addition to jurisdictional matters, there are also sector-based considerations like the front-line health care and long-term care workers who serve vulnerable populations. There’s more ability to defend a mandatory vaccination policy among these groups. But as Sharp points out, since March of 2020 we’ve been saying frontline people can work safely with the appropriate PPE. Now, if we expect these same frontline workers to get vaccinated, how is that going to be received? 

An ardent defender of the rights of employers to manage their enterprise and ensure their long-term viability, Sharp believes the science is going to drive a lot of this. “If PPE is ultimately rated to be, say, 82% effective and a double vaccine is 95% effective, then that might be the preferred route,” he says. 

We have this debate in society that’s dealing with a balancing act. There’s the rights of the employee to govern what they put in their own body, balanced with the health of other employees and the responsibilities of the organization.” Sharp recommends acting in favour of health and safety, based on your ability to run a safe workplace and protect the populations you serve. 

But there are still a lot of moving parts. No one size fits all. And it’s placing employers in a very difficult situation. 

The Return-to-work Survey Says…

What if you issue a return-to-work vaccine survey and feedback indicates the majority of your employees want a vaccination requirement while a minority continue to resist?   

Johnny Taylor Jr, of the Society of Human Resource Management, told CNN most employees want vaccine mandates. They want to know their workplace is safe when people return. His polling shows nearly 70% of employees want their colleagues to be vaccinated. 

How does that fit with occupational health and safety acts? Or public health regulations?   

What is an organization’s responsibility to its employees and the public it serves?   

Conversely, if full vaccination is required, how does that sit with human rights laws, privacy laws, and constitutionally protected freedoms? 

the jealously-protected privacy rights Canadians had cherished have been ripped asunder by the need to protect employee health.” – National Post Columnist Howard Levitt, senior partner of  Levitt LLPemployment and labour lawyers

Mandatory vaccination - elbow handshake with mask

Does Health & Safety Trump Human Rights

Liability risks are uncharted.  

In Canada, employers are restricted by common law”, says Khalfan Khalfan, a senior associate practicing in the Employment and Labor Group of Stikeman Elliot, a global leader in Canadian business law. 

A mandatory employee vaccination policy would be a new term or condition of employment that could lead to constructive dismissal which comes with liability,” Khalfan explains. An enforced policy could also be construed as discriminatory towards employees who opt out of the vaccine for religious or medical reasons, or due to other grounds that are protected by human rights legislation. 

If the risk of transmission can be mitigated by less intrusive measures like masking, barriers, and so on, then you’re less likely to find support for a mandatory vaccination policy,” Khalfan says.  

But where there’s a heightened risk like in a production line where physical distancing is difficult, or in a health care setting, it’s likely an appropriately drafted policy would receive support. But it’s so contextual, Khalfan cautions. 

Sharp is of the same mind. “It’s following the science, keeping health and safety the primary consideration in the workplace. But is the risk worth the reward? You have to make all those determinations. Litigation is not cheap. You don’t want to be first out of the gate taking a radical approach, and become the test that’s going to be litigating. That’s a long, expensive trip. 

Despite the controversy, as employment lawyer Paul Champ made clear in an interview with CTV News,There’s obviously a lot of competing rights and interests, but an employer’s obligation or their interest here is to maintain a safe and healthy workplace. 

In order to find out what is best for your specific organization, you need to survey your workforce to collect sentiment that can guide your decision. Download the info sheet to see how WorkTango’s technology fits the bill.

Additional North American Mandatory 

Vaccination Policy Considerations

In the U.S,  it’s been suggested to turn to the law of extra contractual obligations (ECO), which involves civil liability. submission appearing in the McGill Journal of Law and Health describes how this approach “allows individuals who come down with an infectious disease thats preventable by vaccination to sue the person who chose not to be vaccinated and passed the infection on to them…. Individuals can choose not to vaccinate, but when that choice causes harm, compensation must follow...” 

Is it Best to Error on the Side of What’s Best for the Greater Good?

Richard Wahlquist, president and chief executive officer of the American Staffing [trade] Association believes it’s “critical that employers continue to follow all guidance from government health officials and continue to update employees on the safety measures that have been put in place to keep workplaces safe, as well as the rationale behind them.  

In an interview with HR Executive, Justin Holland, CEO and founder of HealthJoy, a benefits company that works with some 700 employers, points to how the rise of the Delta variant “has really raised the stakes.” 

In the same article, Dr. Jeff Levin-Scherz, population health leader at consulting firm Willis Towers Watson concurs, suggesting many employers will start to make it difficult for employees not to be vaccinated. 

Mandatory Vaccination Trend Setters

U.S. President Joe Biden’s July announcement that federal employees will need to prove their vaccination status or face stricter safety protocols is an influential message for others to follow suit. Just look north of the border.  

In early August, Prime Minister Justin Trudeau revealed that the Canadian government is looking into making vaccines mandatory for federal employees as well as federally regulated industries such as the airline, banking , and rail sectors.  

Corporate America appears to be emboldened by these announcements. 

Google and Facebook, Netflix, Morgan Stanley, and Saks, among others, are requiring U.S. employees to confirm they’re fully vaccinated. Several of these companies are using a definite return to work date as leverage. 

Food processor Tyson Foods, for example, announced it would require employees at U.S. office locations to be fully vaccinated by October 1st while all others will need to be vaccinated by November 1st.  

And according to findings from the Institute for Corporate Productivity’s survey of 481 employers, conducted in June, 16% of employers report they’ll require vaccinations of employees coming on-site to work in organizational facilities. 

But the question remains: where does that leave employees—top talent included—who for medical or religious or reasons of conscience, oppose compulsory vaccination? 

mandatory vaccine policy - socially distance work

Options in Lieu of a Mandatory Vaccination Policy 

One thing employers can think about in lieu of a covid vaccine policy, Khalfan suggests, is to “permit but discourage” a return to the hybrid workplace for unvaccinated employees.  

Think about what these measures might look like. But tread carefully.  Approaches might be to allow unvaccinated employees to come in with the understanding: 

  • a mask must be worn 
  • frequent testing is required 
  • there’s no paid leave for the requisite isolation period if they test positive  
  • movement is limited to workspaces exclusively designated for unvaccinated staff  
  • extra perks like use of the organization’s onsite gym may be curbed 

Weigh the risks and benefits as they apply specifically to your organization. 

Encourage More Employees to Get Vaccinated

While there are always going to be dissenters, there are tactics and tools to keep your workplace safe. And to bring more employees into the vaccinated fold. 

For instance, Khalfan has noticed employers getting more creative during the recruiting phase. “I’ve seen some employers implement as a term and condition of employment for new hires that they be fully vaccinated (with some caveats). Of course, our courts have not tested this specific condition of employment, but it’s another tool for employers if they have the risk appetite.”  

You can also: 

  1. Use local transmission rates to guide decisions. If you operate in areas with high infection rates, delay bringing employees onsite to keep numbers low. 
  2. Gradually transition a return to the workplace. Use a hybrid workplace model that combines remote work and staggered scheduling. 
  3. Educate. Use internal influencers who are fully vaccinated to help inform and persuade different segments of your employee population about the merits of getting their shots. 
  4. Give employees time off to get vaccinated or recover from their shots. 
  5. Make it easier for employees to get vaccinated by partnering with a local pharmacy or hospital. If you’ve got the bandwidth, help to schedule vaccination dates and times on behalf of your employees. 
  6. Communicate. According to a report from global communications firm, Edelman, employers are the most trusted source of pandemic information. Continue to share information with honesty, transparency and respect for privacy. 

Survey. Listen. Act.

Take a page from Roanica Paisley, senior vice president of human resources at Rising Ground, a large New York City human services nonprofit. As reported in HR Executive, Paisley wasted no time in gauging how workers at her organization felt about the vaccines. She talked with employees and listened to their fears: The vaccines were developed quickly. They were approved too fast. Did they have enough testing? Enough data? Were they safe?   

Paisley sent out a survey to get a better sense of employee sentiment. Did they plan to get inoculated? Where were they getting information about the vaccine? What exactly were their concerns? What could convince them to get vaccinated? 

Survey feedback showed most employees were keen on the vaccine. But many others still needed convincing and she had the insights to know where to place emphasis. 

Your organization can find out where to place emphasis too. As a part of an annual survey (such a health and wellness), a new hybrid workplace survey, or as a completely separate survey, collecting employee sentiment is key in finding where to focus your efforts but perhaps the most important factor is to act on that feedback, and quickly. 

WorkTango can support you in deploying a survey to find out where to place emphasis in your specific organization. Schedule a demo today to kick-start the conversation. 

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Additional Resources

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