THE EMPLOYERS' EDGE
BREAKING: COVID-19 Vaccine Mandate Coming to Federal Workplaces
In the afternoon of August 13, 2021 Canada’s Transport Minister Omar Alghabra announced that the federal government would require all public servants to be vaccinated against the COVID-19 virus in order to work.
The Minister noted that Canada’s vaccination rate is among the highest in the world, but in light of surging case counts spurred on by the hyper-transmissible Delta variant, the country “must do better”. And so, Canada’s 300,000+ federal public servants, and those working in the federally-regulated airline and railway industries (among some others) will be required to get the jab. To be clear, Intergovernmental Affairs Minister Dominic LeBlanc emphasized the mandatory nature of this measure, stating “this is a mandatory requirement to go to work in a federal workplace or work in the government of Canada”. The government will be consulting with public service labour unions and employers with an aim to have the mandate in place by October 2021.
Workplaces under federal authority include not only Canadian government departments and agencies, but also many inter-provincial and territorial works such as transport by air and rail, cross-border logistics, banking, and telecommunications. Given the urgency to “stop the spread” of the virus, and considering the nature of these industries, the government is likely hoping (and perhaps assuming) that this mandate will survive scrutiny as a constitutional infringement that is “demonstrably justified” in the circumstances.
It is important to note that however most businesses in Canada are provincially regulated and governed by the employment or labour standards legislation of their respective province or territory. Workers employed by those businesses are not affected by the federal mandate, but one has to wonder whether this is the first step toward legislated vaccine mandates at the provincial/territorial level.
Workplace COVID-19 vaccine mandates – insofar as any exist – have yet to be challenged through the courts. The most analogous jurisprudence thus far include labour arbitrations permitting employers in health care and long term care settings to mandate flu vaccines OR face coverings on a temporary basis. Vaccine mandates are not unheard of however, as most jurisdictions require children and child care workers to be inoculated against a dozen or so different diseases in order to be enrolled in or employed by a licensed child care centre.
The Lawyers for Employers at CCPartners will be tracking developments including any similar government mandates across Canadian jurisdictions. However, employers should keep in mind that mandatory vaccine policies may give rise to legal liability, and are not being widely implemented. Other less intrusive options remain available, such as implementing policies that allow for employees who show proof of vaccination to follow looser restrictions than those who are unvaccinated, similar to Ontario guidelines for exposure to COVID-19 contacts.
Be sure to contact any one of the Lawyers for Employers at CCPartners for advice on how to keep your workplace safe during the pandemic.