With outbreaks slowly increasing, should vaccination mandates be brought back? Employment lawyer offers tips for HR
The federal government announced the approval of a new Moderna vaccine this week, proving that although the urgency of the COVID-19 pandemic has faded, the virus has not gone away — and won’t anytime soon.
And that means employers have decisions to make when it comes to communicating with employees about the virus and vaccinations.
“I think the response that an employer makes to the COVID narrative is really dependent on circumstances, because that's always been the legal obligation when you're looking at an employer's duties with respect to COVID-19,” says Jeremy Warning, partner at Mathews, Dinsdale & Clark in Toronto.
Since April 2024, COVID-19 outbreaks have been slowly increasing with some periods of stabilization, according to Ottawa.
“Following a period of stable trends in June 2024, outbreak incidence has been slowly increasing, up to the beginning of the accumulating data period on August 10, 2024.”
As of July 12, 2024, the vaccination rate was considered “high” in Canada, meaning 81 per cent of the population has had at least one dose, according to the government. However, that number is considerably lower when it comes to “vaccinated per recommendations,” at 3.9 per cent.
With public health mandates more relaxed than they were at the height of the pandemic, mandating vaccinations may no longer be necessary, Warning says — but human resources professionals should still keep an eye on this evolving legal landscape.
Addressing COVID-19 as part of everyday life
“We are now at a point where there has been widespread vaccination of the population, and I don't know that requiring vaccination now where public health mandates don't require it would be supported by adjudicators in the same way as it was during the height of the pandemic,” says Warning.
COVID-19 has entered a phase where it's treated more like other seasonal respiratory illnesses, he says, pointing out that for HR professionals, this means adopting a similar approach to managing COVID-19 as they do for illnesses like the flu, particularly as colder weather approaches and cases rise.
“It may be prudent for employers to remind workers that they can get vaccinated, and they should keep their vaccinations up to date, particularly if they are among any vulnerable groups that could be at greater risk of a significant COVID-19 outcome,” says Warning.
Responding to workplace outbreaks of virus
Determining whether an outbreak originates within the workplace is tricky, but it’s a key consideration when deciding on next steps, says Warning.
“The best course of action would be to determine ‘Is the outbreak actually arising in the workplace?’ which is going to be, and always has been, a very difficult thing to determine.”
Nonetheless, if there is a noticeable cluster of cases, employers may need to consider additional protective measures, he adds; at the very least, by enforcing the widely accepted practice of asking symptomatic employees to stay home.
Plus, employers can gain trust and goodwill by allowing sick employees to work from home, if feasible, and encouraging them to follow public health recommendations.
“If it's a case that there are a cluster of cases in the workplace, then maybe that is something that the employer considers in terms of mandating protective measures — certainly, an instruction to workers who are feeling ill to stay home would be prudent,” says Warning.
“Beyond that, it may be a consideration of whether any further measures are believed to be needed, and again, I would note that there are currently no public health directives or guidance to say that the kinds of measures that were in place during the pandemic, about physical distancing and isolation, are required anymore, and an employer may determine what measure is best from its interest in protecting its employees, because it is most familiar with its workforce.”
Encouraging flexibility to improve compliance
It’s essential for employers to be flexible with their policies to ensure employees comply without feeling penalized, says Warning.
“Employers generally are well advised to try and work as cooperatively and flexibly with their employees as possible on these issues,” he says.
“Many people worked from home during the pandemic, and that infrastructure may still exist at the workplace. So, if possible, then the employee could continue to work from home. If they're going to anticipate that people will stay home when they're not feeling well, having alternatives for those employees that don't result in lost pay is likely going to increase the chance that someone will actually stay home.”
Providing alternatives like allowing employees to use vacation or other accrued days off to avoid losing pay when they’re unwell can increase compliance with stay-at-home measures.
Recommending COVID vaccination without mandates
As public health information becomes less frequent and accessible, employers need to stay vigilant by monitoring local health authority communications, Warning says.
“It may be a case that reminders about protecting everyone against each of these respiratory viruses is timely in the fall,” he says. “Reminding people about keeping vaccines up to date is one of the best protections, certainly against severe outcomes, and then considering publicly available information or guidance for your particular workplace, or the population in general, and whether that guidance requires any modification to workplace practices.”
COVID-19 vaccines are now following a similar trajectory to flu shots, with new strains and updated vaccines being developed annually.
“The new strain of COVID, and the responding vaccines, I think, is starting to fall into a model that is very similar to what happens with the flu virus every year,” says Warning, and HR professionals should keep this in mind when communicating with employees about vaccine recommendations and workplace health measures.
Vaccine mandates without public health directives may no longer be practical for most workplaces, he says, but reminders about the benefits of vaccination can still be encouraged, such as protection against severe illness, particularly in vulnerable groups.
