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Omicron: How to return to work safely

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“There is nothing legally prohibiting an employer from establishing and implementing a mandatory vaccination policy,” Rideout told HRD. “Employers in non-unionized workplaces have the right to manage their workplaces as they see fit, including implementing policies. A mandatory vaccination policy however does come with risks, including privacy concerns, human rights issues, constructive dismissal claims, and potential class actions if it is later determined that the COVID-19 vaccine has long-term side effects. A mandatory vaccination policy is also more likely to be considered reasonable if it provides alternatives to getting vaccinated. For example, if employees are able to work from home without disrupting an employer’s business, then an employer can allow employees to work from home as an alternative to get vaccinated.”

 From a human rights perspective, employers may have a duty to accommodate an employee who cannot get vaccinated for religious, medical or other reasons based on legitimate human rights grounds. A mandatory vaccination policy should address in what circumstances the duty to accommodate may arise and how an employer will address requests for accommodation. The accommodation provided to an employee will depend on the circumstances, but could regular testing, masking and social distancing measures, and remote work options.

 “Employees should also be mindful of privacy risks,” Rideout told HRD. “Some provinces (such as BC, Alberta and Quebec) have privacy legislation that restricts an employer’s ability to collect, use and disclose personal health information (i.e. vaccination status information). These privacy risks are complex and legal advice should be sought before collecting, using and/or disclosing personal health information of employees.”

Remote working

 For employers who will continue to have employees working remotely, McMillan recommends the following:

(a) Remote working policy for existing employees

 It is clear that the pandemic is not behind us as new variants emerge. Remote working will likely continue to be a reality in many workplaces for the foreseeable future. Having a proper remote working policy in place can address issues like the employer’s right to mandate a return to the office (i.e. remote working is not a term and condition of an employee’s employment), an employer’s and employee’s obligations with respect to health and safety in the remote workspace (in some Canadian jurisdictions, such as BC, an employer’s health and safety obligations extend to a remote workspace), and work productivity and performance.

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