Questions are swirling amongst Manitoba’s business community over employees and COVID-19 vaccines, but experts say it’s still a grey area.
“The one answer that clients hate from lawyers is: it depends. And of course that’s exactly the situation here,” says William Gardner with Pitblado LLP in Winnipeg, who also chairs the Manitoba Employers Council.
“You have to balance the obligation of employers to ensure a safe workplace with employee rights to privacy and the possibility that human rights considerations come into play, for example disability (or) possibly religious objections.”
The bar for implementing a mandatory vaccination policy is quite high, and Gardner says two main factors should be considered first.
That includes whether there’s a high likelihood of transmission, such as in a meat processing plant.
The other is whether non-vaccinated employees present a substantial risk, like in a long-term care home.
Even if those two bars are met, there’s still more to take into account.
“You still have to consider privacy and you have to consider accommodation and human rights, and you must look for alternatives if employees can’t be vaccinated or don’t want to be vaccinated,” Gardner says.
That means looking for less intrusive ways to meet the same ends, such as having employees work remotely or from home, or if donning personal protective equipment will suffice.
“Are they possible? If they are, they must be taken,” Gardner says.
“If they’re not, then I think a mandatory vaccination policy might go to the point of saying to the individual who can’t or won’t get vaccinated ‘we can’t employ you.’”
The situation becomes even less clear in terms of disability, allergy or religious objection, although Gardner notes the threshold on religious grounds is “pretty high,” and so far employees haven’t been successful in claiming religious exemption.
Gardner suggests business owners should try their best to find accommodations when any of the above are brought forward.
“The number of situations where there’s a real problem will be relatively low, and they have to be managed,” Gardner says. In any case, the information should be kept confidential.
To require customers be vaccinated is an even less likely situation, since Gardner says a business owner would have to prove it’s a health risk otherwise.
Jonathan Alward is the director of the prairie region for the Canadian Federation of Independent Business (CFIB), and says questions have been rolling in for months from concerned business owners.
“We have sought advice, and requiring your staff to be vaccinated is not something we advise,” Alward says.
“Sharing information on vaccinations is one thing, but requiring it is completely another.”
Alward says organizations such as his are trying to develop clear and concise guidelines, but recent actions by the provincial government – specifically the new Healthy Hire Manitoba Program – are “adding to the confusion.”
Under the program, employers can receive up to $50,000 in subsidies to help cover the wages for new employees who can attest they have been or will be vaccinated.
“We’ve got to get this straightened out as soon as possible to protect businesses and their staff,” Alward says.
“There are some very, very valid reasons why people cannot get vaccinated in Manitoba, and we need to understand that there might be health implications, for example if you have an allergy, so we need to make sure that businesses have the right advice.”
Alward would like the province to come up with policies going forward that are consistent with prevailing legal advice.
In the meantime, he points out many small businesses don’t have entire legal teams or human resource departments to determine what their best course of action is, so he suggests getting in touch with business organizations like the CFIB to learn more.
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