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Navigating a legal grey area
By Shea Peplinskie, Donald & Kehler Law Office

 

Questions that are emerging from the Covid-19 pandemic include: How can employers ensure the safety of their employees and clients while continuing to respect the autonomy of their employees? Can an employer in Manitoba mandate that their employees be vaccinated against Covid-19? Can an employer require proof of vaccination? This area of law remains unsettled and is expanding as this pandemic continues.

What the laws in Manitoba are clear on is that employers have a duty to comply with The Workplace Safety and Health Act, and therefore, must ensure the health and safety of their worksites. An employer is responsible for ensuring the safety of employees, clients and visitors on their premise. At present, this means following Covid-19 safety protocols such as mask wearing and hand sanitizing.

Whether an employer can mandate or require proof of Covid-19 vaccinations in the private sector in Manitoba is a grey area of the law. There is precedent for mandatory vaccines in some provinces. For example, proof of vaccination against measles, mumps and rubella is required for children to attend school in Ontario; teachers also require these vaccines as a function of their profession (noting that there are exemptions allowed based on religious or conscientious objection).

The Province of Manitoba has recently legislated that all employees of the province must be vaccinated for Covid-19 or submit to being tested for Covid-19 three times per week. This legislation does not apply to private sector employees and employers are free to implement Covid-19 protocols for their workplaces in-line with the needs of their sector.

Employers can, as part of their Covid-19 safety protocols, encourage and support their employees to get vaccinated by providing paid time-off to get the vaccine, paid sick leave if they experience side effects of the vaccine and rides to and from vaccine centres.

Employers are also able to develop a Covid-19 safety protocol that includes a mandatory vaccine policy. However, these policies can be challenged in the courts, and it must be noted that this area of law is not fully developed.

There is a difference between asking an employee for proof of vaccination and asking an employee to disclose if they have been vaccinated. Asking an employee for proof of vaccination may be overstepping the employee’s right to privacy. Whereas, allowing an employee to disclose if they have been vaccinated without requiring proof may be a way to avoid overstepping. Employers should navigate this space with caution to balance their duty to comply with health and safety standards with their employees’ rights to privacy in relation to their personal health status.

Employers need to allow for exemptions to Covid-19 vaccination requirements based on medical or religious reasons. A person not agreeing to be vaccinated is not a valid reason to terminate employment. If possible, the employer should attempt to provide accommodation for the employee, until accommodating the employee becomes unduly difficult.

When constructing a Covid-19 safety protocol, employers should consider what the goals of the plan are and their specific needs in their workspaces. For some workplaces this might mean scheduling the same crew together to decrease the chance of spread of Covid-19, ensuring that employees who interact with clients or visitors are vaccinated, keeping employees who are not vaccinated away from customers or on the same crew, and being flexible and open to the unique needs of employees as they struggle to adapt to the difficulties of life during a pandemic.

Once a safety protocol has been adopted, employers must ensure that they have adequately informed their employees of the protocol in advance of its implementation to allow employees the necessary time to make the required arrangements. Employers can inform employees through emails, posting posters around the workplace or having a mandatory paid safety meeting with all employees to explain the new safety protocols.

In sum, this is a novel and undeveloped area of the law. There are currently no hard and fast rules about what employers can and cannot do as it relates to implementing vaccine mandates. Employers do have a duty to comply with the Workplace Safety and Health Act which means that creating and implementing Covid-19 safety protocols are a must. If an employer wishes to mandate vaccines, they should understand that this is an unsettled area of the law in which the courts have not yet commented on for the private sector. Employers should incentivize employees to get the vaccine, be open to considering exemptions for employees who require it and understand that even when an employer is acting on their best efforts and intentions, an employee can still decide to pursue legal action. 

Contact your lawyer or Donald & Kehler Law Office to assist with employment law and Covid-19- related concerns.

Shea Peplinskie joined Donald & Kehler Law Office in 2021, as an articling student, graduating from the Faculty of Law at the University of Manitoba. During her time in law school, she received the D.A. Thompson, Q.C. Prize for earning the top grade in Aboriginal Law Criminal Justice and Family. She also participated in the Solomon Greenberg Trial Moot Competition and was the national director of advocacy for the Black Law Students’ Association of Canada. She is building a general practice focusing on construction, employment and family law. In the community, Peplinskie volunteers for the Women’s Resource Centre.

This article was original published in Issue 2 2021 of Building Rural Manitoba, and is reprinted here with permission.

 

 

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Piling Canada is the premier national voice for the Canadian deep foundation construction industry. Each issue is dedicated to providing readers with current and informative editorial, including project updates, company profiles, technological advancements, safety news, environmental information, HR advice, pertinent legal issues and more.