Given the change in the public health guidelines and rules around vaccination, employers have many questions right now surrounding their options, obligations and exposures with respect to unvaccinated employees. Whether trying to determine whether they can – and how to – return unvaccinated employees or assessing their options in dealing with outstanding challenges to vaccination policies, the Provincial Government's recent relaxation of COVID-19 mandates and accompanying Policy Statements have forced employers to address issues related to employees who have otherwise been excluded from the workplace in the interest of health and safety. While governmental vaccination requirements may no longer be mandated, that is not necessarily an impediment to self-determination for employers: it simply comes down to the particular employer's own policy and the direction the organization wishes to go – all of which is, of course, dependent on the specific circumstances of the individual employer. However, it is worth highlighting some general considerations related to returning unvaccinated employees to work (both legal and otherwise), particularly given the current available data on positivity rates and surges in infections during the sixth wave.
Prior to that, though, we note that for employers who placed employees on leave through the application of valid vaccination policies, the legal arguments with respect to any liability for the original decisions to place employees on leave have not changed: notwithstanding the current change in circumstances, if your Policy and its administration and enforcement at the time was in line with what was reasonable and appropriate that remains the case with respect to "point in time decisions".
Return to work
Based on current guidelines and requirements, employers can consider returning unvaccinated employees as there are very few specific circumstances where it is mandated otherwise. However, when considering returning such employees, there are some additional considerations. These include:
- Ongoing health & safety measures – will you require continued masking and/or testing, even if other employees are not required to do so, because of the lack of vaccination? If so, that justification needs to be based on either or both of OSHA obligations (providing a safe workplace for the returning employees and their coworkers) and, where applicable, the client population being served.
- Adjustments to work duties – Can or should duties and responsibilities be adjusted or curtailed to limit risk and exposure for the employees, their coworkers and/or clients?
- Effect of their return on morale (re vax policy or otherwise) – regardless of any ongoing health and safety requirements in place for the returning employees, there may be some resentment/hesitation from other staff members to the return of employees who did not comply with the policy and are now being brought back, particularly when the pandemic is not over and, in fact, we are seeing concerning statistics on probable number of cases (as many as 120,000.00 daily on Ontario as an example).Employers serving the broader community may also need to address the impact of returning unvaccinated employees on the overall safety of the community.
Conclusion
As evident from the above, employers who have placed employees on leave in accordance with vaccination policies should be in a position of strength and leverage: should you wish to bring the employees back, you as employer are in the driver's seat. Given the lack of adjudicative decisions at this point, it is generally a matter of managing employees' return with the rest of the workforce and ensuring proper safety protocols are in place. In that regard, we note that the purpose of COVID-19 vaccination policies are not, or should not be, necessarily limited to the previous or current iterations of COVID-19 and its variants, but rather should be addressing the overall issue of the concerns and complications brought to the fore by the Coronavirus generally.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.