CHAUDHRI: Employees refusing COVID vaccination may forego privacy rights
It’s time for COVID to pack its bags as promising vaccine news has swept global headlines.
Of course, that presupposes we all will line up promptly to get the vaccine. Personally, I can’t wait; but I know that feelings aren’t always mutual. So how will employers respond to those who refuse a COVID vaccination?
Many are asking if employers can force employees to vaccinate. Employers are not permitted to mandate vaccinations of employees. An analogous comparison are the many organizations that host “wellness clinics” every year to encourage employees to take the flu vaccine.
However, employees who do not want the flu vaccine may decline with impunity.
In fact, the Ontario Nurses Association (ONA) won two arbitrations in recent years (2015 and 2018) challenging hospital implemented “vaccinate or mask” (VOM) policies during the annual flu season.
In 2018, ONA took on St. Michael’s Hospital where it sought to strike down the policy requiring healthcare workers to wear a surgical mask during their shifts if they failed to take the flu vaccine that year. Arbitrator William Kaplan, in his decision, found the policy “is the exact opposite of being reasonable” and “makes no sense.”
In the 2015 case, ONA argued that there is insufficient evidence that masks reduce the transmission of the flu and that the requirement to wear a mask if unvaccinated, was a breach of each employees’ privacy rights. A mask signaled to the public that a worker was unvaccinated and too harshly infringed on an employee’s right to keep their healthcare choices private.
For the record, I don’t think these cases will carry the day when it comes to COVID, which is more insidious than the flu. All levels of government have required the wearing of masks in most indoor spaces and many workplaces. In Ontario, workplaces are required to screen for COVID symptoms every time an employee steps into work. Our expectations of privacy when it comes to COVID have already been relinquished.
While employers may not be entitled to expect employees to get the COVID vaccine in order to return to work, employees too should not expect that they may be permitted to work from home indefinitely. While telecommuting has come a long way, if there is a legitimate requirement for an employee to return to work and that employee refuses to vaccinate, she may simply not be the right person for the job and frustrate herself, or himself, out of an employment agreement. I suspect there will be a lot of litigation around this idea as telecommuting is fast becoming an employee expectation and not just a temporary measure to stop the spread.
Like ONA, four major teachers unions representing 190,000 teachers took on the Ford government this September claiming workplace safety violations when schools reopened. When some teachers fail to vaccinate our provincial government can expect terse negotiations on what it will take to keep schools safe. Unions will be forced to choose sides, and quickly. If unions back the rights of unvaccinated workers, schools will never return to what they once were. The need for PPE, increased ventilation and smaller class sizes will need to be maintained for years.
I suspect employees will either vaccinate or be forced to forego their rights to privacy when it comes to COVID. All levels of government will have to carefully roll back current employee privileges when a vaccine is introduced and life can get back to normal. What a harrowing task that will be.
On to your questions from this week:
Q. I work in an office where there are only two staff working in the same area. We cover for each other on time off and vacation coverage, although our work is different, one position is higher pay scale. In March of this year, my colleague sent an email to the boss stating that she was working from home. She has been working from home ever since. I grew frustrated from covering some of her work during her absence and finally requested to work from home as well. I was told that I could not. I grew depressed and did not want to work. I met with my boss again and asked if he would consider allowing me to work from home and he approved two days per week starting in August. I sent a medical note into occupational health. I was refused accommodation because they said that all of the accommodations to keep me safe at work were in place. So, my question is, what accommodation can be put in place to protect my health but cannot be put in place to protect my colleague?
A. There is no right to work remotely, but you do have a right to be treated fairly and consistently among your peers. It is possible that your colleague has a medical or family status accommodation that needs to be met. If that is the case, it is subject to privacy and your employer doesn’t have to share that with you. If you have legitimate medical documentation to support a work from home request, you may want to consider getting legal advice to assist in your request. But if you cannot attend work it is possible you will be approved for an unpaid medical leave, not necessarily set up to work remotely.