WORKING With Vaccinations

Legacy Bowes has been receiving many questions about mandatory vaccinations in the workplace. The topic is especially pertinent for Indigenous communities who have passed Band Council Resolutions or Bylaws to require all people who enter the community to be vaccinated. This raises issues about Human Rights, personal health information, health and safety, and job requirements. Legacy Bowes has spoken with Shawn Scarcello from Cochrane Saxberg Barristers & Solicitors, in order to clarify both employee and employer rights. We have set it up to answer the frequently asked questions from Indigenous clients.

Can an Indigenous Community pass a Band Council Resolution to require everyone who enters to be vaccinated?

A Band Council Resolution (“BCR”) will likely not be enough to enforce a mandatory vaccination policy. It has been found that BCRs cannot implement initiatives identified in the Indian Act as being the proper subject of bylaws.

The Indian Act (at section 81(1)(a)) gives First Nation council the right to make by-laws “to provide for the health of residents on the reserve and to prevent the spreading of contagious and infectious diseases.” While this section of the Act has not been litigated, other communities outside of Manitoba have used this provision to restrict travel into their communities due to COVID.

If a bylaw is enacted, the Band will be able to apply for an injunction from the Court if someone is found to contravene the bylaw. Accordingly, a bylaw is the best mechanism for a First Nation to implement a mandatory vaccination policy.

Does a workplace need a Vaccination Policy?

It is strongly recommended that a Vaccination Policy be implemented in the workplace. This would make procedures for the job duties/working conditions that would require an employee to be vaccinated, how that information is provided, and, if it is filed, how it is stored.

It would also make procedures for accommodating those who cannot be vaccinated for reasons protected under the respective Human Rights Code.

Can you ask an employee whether they have been vaccinated?

Personal health information may be obtained as confirmation of compliance with the vaccination policy, if implemented.

There are multiple ways to ask for “proof”:

1. Trust in honesty - ask them without making them show proof. The understanding here is that if they are lying, it would be immediate dismissal. There are no records to keep secure.
2. Ask them and put a check mark on a form, no proof required but there is a record in a separate Health Info File (separate from their HR file with very limited access).
3. Ask them to show proof of vaccination but do not record it anywhere. This is firm proof with no need of storage.
4. Ask them to show proof and have a check mark in a Health Info folder.
5. Photocopy their proof of vaccination and keep it on file.

If you are keeping the information on file, written consent for the collection and retention of information should be sought, and a blank form may be attached to the policy.

The information should be retained only until the purpose of collection is no longer required. For example, after the pandemic is no longer an active risk, the employer should consider destroying all records. The record should be destroyed if the employee ceases to work for the organization.

Lastly, the information should be kept separate from the employees’ personnel file, and it should only be disclosed on a “need to know” basis (for example, workplace safety and health committee may need to know, but the direct supervisor of the employee likely does not).

Proof may vary depending on what the government is issuing in your area but vaccine passports are becoming popular for travel so may well be common in the coming weeks.

What about professionals who live off reserve who need to commute in to perform their jobs: plumbers, Child welfare Workers, etc.

As stated, a First Nation is entitled to require people to be vaccinated before entering the community, with a properly enacted bylaw.

If a professional cannot be vaccinated for a valid reason, the First Nation should be prepared to implement other protective measures (requiring masks, etc.) instead of prohibiting the person from entering the community, to avoid a human rights claim.

If accommodating, are there more options than just Work from Home?

Yes. Personal Protective Equipment (“PPE”) including sanitizer, masks, physical distancing, etc., is a form of accommodation if they can adequately mitigate the risk posed to the employee who cannot be vaccinated.

In fact, it is likely that if a legal contest arises from the mandatory vaccination policy, an employer will need to justify why other protective measures (such as those listed above) are insufficient to curb the risk of exposure/ spread of COVID, thereby necessitating a mandatory vaccination policy.

If an employee is eligible for the vaccine and chooses not to get it, can they be terminated?

If you have a policy in place and someone refuses a vaccine because of personal preference, you can terminate their employment if you can prove that vaccines are required for Workplace Health and Safety (they are required to be in contact with multiple people, physical distancing cannot be maintained at all times, etc). Laying off is not the best option because there is no reason to believe that there will be a safe time in the future when unvaccinated people can safely return to their work.  

If you can prove that being vaccinated is a condition of their employment and that they were eligible for the vaccine but refused to get it, then the termination would be for just cause.

Legacy Bowes hosts Keeping Current with HR - a FREE video call supporting the Leaders and staff of First Nations on the tough questions our Human Resource professionals face day-to-day. On August 18 it will be focused on Vaccines in the Workplace & COVID-19 Updates, so be sure to register at www.legacybowes.com/events/webinars/keeping-current-with-hr

Disclaimer: As a general disclaimer, there is not sufficient case law to provide definitive conclusions for many of these questions. As the law evolves in this area, these answers may change. Also, the answer to many of these questions is situation dependent. If you are a unionized employer, consultation with the union is essential during the preparation and distribution of your policy.