[vickyp]

in reply to: Answer for can-an-employer-make-flu-vaccination-mandatory #87254

Funny you should ask. That’s the lead story in the upcoming issue of the HRI newsletter. I’ve pasted the article below but you can easily find it and all the related TOOLS on the HRI site. There’s also a new Special Report on Flu and COVID that you can look at. Bottom Line is YES under certain conditions, as the article explains.

Can You Make Employees Get a Flu or COVID-19 Shot?
Bottom Line on Top: Yes, a mandatory flu vaccination policy is legally justifiable as long as:

• It’s a necessary health and safety measure for the particular workplace;
• It’s no more intrusive than it has to be;
• It doesn’t violate employees’ contractual or collective agreement rights; and
• It doesn’t discriminate on the basis of religion, disability or other protected grounds.

Same Principles Apply to COVID-19 Vaccinations
Even though this story talks about flu vaccination, the same principles will almost surely apply if and when a safe and effective vaccination for COVID-19 coronavirus becomes publicly available.

The Legal Justification for Mandatory Flu Vaccination Policies
Courts and arbitrators have historically upheld mandatory flu vaccination policies (as well as their slightly less restrictive cousin, the vaccination-or-mask policy requiring all employees to either get vaccinated or wear a mask during flu season) as a legitimate workplace health and safety measure. This consensus is based on 3 undisputable facts:

• Fact 1: While OHS laws don’t specifically address flu or flu vaccinations, they do require employers to take measures “reasonable in the circumstances” to protect workers from hazards;
• Fact 2: When a worker gets the flu, it poses a hazard to not just co-workers but everybody in the workplace, including customers, patients, guests, etc.; and
• Fact 3: Flu vaccinations have been proven to be safe and effective in preventing the flu.

The 4 Legal Restrictions on Mandatory Vaccination Policies
Even though mandatory vaccination is generally justifiable, demanding that employees get a flu shot is highly intrusive and subject to certain limits. Here are the 4 basic ground rules.
1.  Policy Must Be a Necessary Health & Safety Measure for the Particular Workplace
You need to be able to show that the rationale for a mandatory vaccination policy is a justifiable health and safety measure for your particular workplace based on objective, scientific facts about flu risks. This is easiest to do in health care, nursing home, education and retail settings involving exposure to the public or physically vulnerable. In fact, mandatory flu shots for healthcare workers is actually a legal requirement in some municipalities. Conversely, mandatory vaccination is harder to justify in non-healthcare and other workplaces where the imperative for infection control isn’t significant enough to warrant overriding employees’ control over their own bodies.
2.  Policy Must Be as Minimally Intrusive as Possible
Even where mandatory vaccination is justifiable for a setting, there must be a clear, written policy whose terms are limited to the minimum necessary to accomplish the health and safety purpose. (The Model Policy on page X [production: fill in] below is a template that you can adapt.) The vaccination requirement should be based on job description and limited to employees for whom having the flu would pose an unusually significant hazards, as opposed to being staff-wide. Also consider the possibility of alternatives, such as a vaccination-or-mask policy, and leave room for religious and other exemptions, as we’ll explain below.
3. Policy Can’t Violate Employees’ Collective Agreement or Contract Rights
Almost all of the court cases challenging the legality of mandatory flu vaccination policies are grievances from unions. The theory: Employees still have the choice not to get a flu shot, the unions acknowledge. But by making refusal grounds for discipline, mandatory vaccination has the same basic effect as coercion and violate the parts of the collective agreement ensuring employees’ bodily integrity, autonomy and privacy. Even though there have been nearly a dozen such cases over the years, all but one of them were decided in the employer’s favour.
Employer Wins: During a flu outbreak, a BC health authority adopted a policy to suspend non-immunized employees without pay. without pay during a flu outbreak. The union claimed the policy essentially coerced medical treatment but the arbitrator dismissed the grievance. The policy was an effective and reasonable way to prevent and contain flu outbreaks, it reasoned; and even though suspension without pay would be harsh, employees still did have that choice [Health Employers Assn. of BC v. BC Nurses’ Union, [2006] B.C.C.A.A.A. No. 167, Sept. 15, 2006].
Employer Loses: The one outlier case where an employer lost was a 2002 Ontario arbitrator’s ruling that suspending geriatric hospital employees for not getting a flu shot without pay during an outbreak violated employees’ privacy and right to “bodily integrity” [St. Peter’s Health System v. CUPE, Local 778 (Flu Vaccination Grievance), [2002] O.L.A.A. No. 164, Feb. 7, 2002].
4. Policy Must Provide for Religious, Disabilities & Other Accommodations
According to human rights commissions’ guidance, forcing an employee to get vaccinated might violate his/her “sincerely held religious belief, practice or observance” in violation of human rights laws. It could also be disability discrimination if employees have a disability preventing them from getting the vaccine. In either case, you’d have to engage the employee and determine what accommodations to offer. Possibilities may include:

• Exempting the employee from the policy, which could be conditioned on his/her agreement to wear a face mask or face covering;
• Temporarily reassigning the employee to another position where lack of immunization would pose less of a hazard to others; and
• Letting the employee work from home or take a leave of absence until the flu outbreak ends.

Discrimination & the “Anti-Vax” Movement
The human rights codes of most jurisdictions protect not only religion but also creed, which is defined in Ontario as “a set of sincerely held religious beliefs or practices which need not be based on the edicts of an established church or particular denomination.” That opens the door for a challenge by employees who subscribe to the so-called “anti-vax” philosophy that objects to vaccinations of any kind. Is mandatory flu vaccination a form of creed discrimination?
So far, only one case has addressed this question. In 2011, the Ontario Human Rights Tribunal ruled against a paramedic who claimed that his employer discriminated against him by refusing to schedule him until he was vaccinated. According to the Tribunal, a general objection to immunization doesn’t amount to creed [Ataellahi v. Lambton County (EMS), 2011 HRTO 1758].
What to Do
The key to compliance is to have a clear, written policy on flu vaccinations. There are 2 approaches:

• Adopt a mandatory vaccination policy (like the one on page X [production: fill in] below; or
• Adopt a non-mandatory policy that encourages but doesn’t require flu shots. (Go to the HRI website for a template.)

The mandatory policy makes the most sense and may even be legally required if you’re in health or nursing care, and is highly advisable for education, retail and other public-facing industries. If you opt for a non-mandatory policy, have employees sign a written acknowledgement of their refusal to be injected like the one on page X [production: fill in] below.  

[vickyp]

in reply to: Answer for Pandemic Related Paid Sick Day #87253

Apologies for the delay in getting back to you. These are all excellent questions that deserved a much faster response:

1. Yes, you can provide for paid sick leave days on a temporary basis for the duration of the pandemic, subject to the terms of any applicable employment contracts or collective agreements. In fact, many employers are doing just that to keep sick employees home. Also keep in mind that in BC, employees are entitled to 3 days’ unpaid sick leave.
2. Probably No on the negative test. Explanation: Public health guidelines allow/require pre-employment SCREENING, which constitutes asking YES/NO questions about COVID symptoms, travel outside Canada and recent exposure to a person confirmed as or probably having COVID. It does NOT mandate COVID TESTING, which is far more intrusive. There would have to be some unusually compelling reason to justify going beyond the screening and requiring a negative test. The mere fact that an employee HAD COVID isn’t enough since there’s no medical evidence suggesting that such people are a greater risk to spread the virus, provided, of course, their symptoms have fully resolved and they’ve done the minimum 14 days of self-isolation.

Sorry again for keeping you waiting and I hope that was worth the wait.

[vickyp]

in reply to: Answer for Ontario makes COVID-19 workplace screening mandatory. Is this daily? #87252

Yes, it’s daily. Here’s the operative language from the Ontario DOH:
“Screening should occur before or when a worker enters the workplace at the beginning of their day or shift, or when an essential visitor arrives.”
http://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/workplace_screening_tool_guidance.pdf
If you haven’t already, check out the Alert and TOOLs we posted on this on the HRI website.

[vickyp]

in reply to: Answer for Require clarification on a contest for local artists to paint several concrete walls – is this a MOL contravention? #87251

You’re most welcome. Good luck with the contest, which sounds like an exciting and community uplifting venture.

[vickyp]

in reply to: Answer for Ontario – Overpayment of Vacation #87250

From Alan: The short answer is there is very little an Ontario employer in this position can do, if they don’t have the employee’s written permission to recover the overpayment from any other wages owing. Just about the only alternative is to take the employee to court.
****
Hope that answers your question. Sorry, it’s probably not the answer you were hoping for, though. Glenn

[vickyp]

in reply to: Answer for Ontario – Overpayment of Vacation #87249

Great Q. I’m going to forward it to our payroll guru, Alan McEwan, who can provide a far better answer. Will forward to you as soon as he gets back to me. He’s usually pretty prompt. 

[vickyp]

in reply to: Answer for Can an Employee change their employment agreement Ontario #87248

Employees CANNOT unilaterally change the terms of their employment agreement–and neither can employers. To be binding, contractual changes must be mutually agreed to as exhibited by a signature depending on the amendment procedures set forth in the original contract. In theory, you can also waive contractual rights without a writing through your actions, e.g., telling the employee you accept the reduced notice. But it sounds like you haven’t done that. So, if the reduced notice is important to the employee, you might want to sit down and negotiate a change. Of course, once you reopen the contract, literally everything is on the table and you can negotiate for changes that are favorable to you in exchange for conceding on the notice. Hope that helps. Glenn

[vickyp]

in reply to: Answer for Require clarification on a contest for local artists to paint several concrete walls – is this a MOL contravention? #87247

Just a personal opinion, which you should NOT confuse for legal counsel, is that you don’t need an ESA waiver for this arrangement.

[vickyp]

in reply to: Answer for Require clarification on a contest for local artists to paint several concrete walls – is this a MOL contravention? #87246

Sorry, I’m a bit confused by the question but I’m reading it as asking whether the volunteer artist competition would constitute an employment arrangement subject to the Ontario Employment Standards Act. My strong sense is that it would not. However, without understanding much more about the details of the arrangement, I can’t be 100% certain. You might want to go directly to your regional MOL office and ask them what they think. Hope that helps. Glenn

[vickyp]

in reply to: Answer for Travel on airplane during Covid pandemic #87245

Great Qs. First, unless I missed something in the past 48 hours, the 14-day self-isolation rule continues to apply to plane travel within Canada. There are some local bubbles, e.g., the Atlantic Provinces, but I haven’t heard anything about the new self-monitor vs. self-isolate change.
Under current rules, you must let employees who travel by plane take unpaid leave but DON’T have to pay them, unless your collective agreements, employment contracts or benefits plans require otherwise. I believe this would still be the rule even if public guidance HAS changed and self-isolation is no longer required. There would have to be an actual ESA law providing for pay, the way there was for COVID leave. And that law would have to come from your province, BC–unless you’re federally regulated.
As always, you need to keep in mind that this is just an opinion and not legal counsel. But I think what you’re doing is fine. Hope this helps. Glenn

[vickyp]

in reply to: Answer for Return to work Covid-19 #87244

Yeah, that’s a tough one. Based on the facts you describe, you do have the legal right to insist the employee return to work, provided that your health and safety and infection measures are as effective as you say. However, while you may be in the position to end the employee’s employment, I also appreciate that you’re looking for a resolution rather than legal solution. First and foremost, you should explain and make her appreciate all of the things you’re doing to protect workers. Offer her a tour or hook her up with other workers who feel safe. If she still doesn’t want to return, explore the possibility of telecommuting or other accommodations–like letting her work at times when fewer people will be around or maybe even in a physically isolated area. Finally, just ask what would make HER feel comfortable. Good luck and please let me know how things turn out. glennd@bongarde.com

[vickyp]

in reply to: Answer for New Federal Workplace violence & harassment rules , when are they taking effect ? Ontario #87243

January 1, 2021. I know it’s confusing because they passed the Bill (Bill C-65) last year but didn’t publish the OHS Regulations that implement the Bill until this July. But Jan. 1, 2021 is the official effective date. We’re gonna hit this stuff really hard in the coming weeks because we know there are a lot of federally regulated employers who are gonna need help getting ready. Stay in touch. Glenn 

[vickyp]

in reply to: Answer for Drug and Alcohol policy #87242

That’s a really great Q and a really hard one to answer. There’s a Supreme Ct case called Stewart v Elk Valley that allowed an employer to terminate an employee for failing to self-disclose. But it’s very limited and based on the terms of the testing policy. Here’s a story we did on the issue a few months ago. Pls feel free to contact me directly if you want to discuss further. glennd@bongarde.com.
****
Companies have traditionally relied on testing to determine if employees use alcohol, drugs and other impairing substances at work. While testing remains a crucial safety measure, many companies now ask employees to self-disclose their alcohol/drug problems, typically on a non-disciplinary basis. The idea: Recognize that substance abuse is a problem, not a form of misconduct, and get employees who come forward voluntarily the help they need. Then if employees don’t take the offered amnesty and later test positive, you can discipline them.
Although a recent Canadian Supreme Court called Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591, recognizes the general legality of that approach, your policies must apply it very carefully. It comes down to a balance between your interest in workplace safety and the employee’s privacy and right to accommodations.

• Rule 1: The policy must be not only necessary to ensure safety but carried out in the least privacy-intrusive way possible.
• Rule 2: The policy must accommodate employees’ disabilities (remember that drug/alcohol dependency and addiction are “disabilities” under human rights laws) to the point of undue hardship.

Is Your Policy Up to Snuff?
How can you tell if your own self-disclosure policy is legal? To help you make that determination, we’ve looked at actual cases where courts and arbitrators applied the above rules to evaluate the legality of such policies. We then rolled the common problems that caused a policy to fail scrutiny into a fictional Model Substance Abuse Self-Disclosure Policy, a policy from hell demonstrating the pitfalls you need to avoid.
Your assignment: Look at the policy and identify as many of the problems as you can.

The Substance Abuse Self-Disclosure Policy from Hell
1. Scope: This Policy applies to all ABC Company employees regardless of job, job title or employment-status.
2. Duty to Disclose: Employees must notify their supervisors if they currently use or have used drugs, alcohol and other impairing substances in the past 6 years.
3. Independent Medical Exam (IME): Upon disclosure, employees will be removed from duty, placed on leave and required to undergo an IME conducted by an addictions specialist selected by ABC Company. If the IME finds the use is related to an addiction or dependency, the employee will be offered reasonable accommodations, medical assistance and support designed to ensure his/her return to work as quickly as possible; if the IME finds the use to be recreational, the employee will be subject to discipline in accordance with the ABC Company Discipline Policy.
4. Return To Work: Employees may return to work upon completing the following rehabilitation, treatment and monitoring conditions:
(a) Abstention from drug and alcohol use during the return to work process;
(b) Completion of a prescribed treatment program consisting of: i. attending at least ___ Alcoholics/Narcotics Anonymous meetings per week over a ______ period; ii. maintaining regular and meaningful contact with an AA/NA sponsor; and iii. completing any 12-step program the sponsor recommends.
(c) Passing random drug/alcohol tests every 2 weeks during the return to work process.
(d) Undergoing second IME that determines that the employee no longer has an addiction or dependency and is ready to return to work.
5. Last Chance Agreement: After fulfilling the above return to work conditions, the employee will be reinstated after signing a Last Chance Agreement promising to adhere to his/her treatment program, submit to random testing and agree that any further alcohol/drug violations will result in termination.
****
Click here for a corrected and cleaned-up version of the Model Policy.

What’s Wrong With This Policy?
While the non-disciplinary self-disclosure approach is in line with the Elk Valley case, almost every provision implementing the concept is problematic.
1. Covers All Employees Instead of Safety-Sensitive Ones
The red flag is the phrase “all employees.” While requiring all employees to be fit for duty is perfectly appropriate and necessary safety objective, the provisions set out in this Policy are highly privacy-intrusive and justified only when limited to safety-sensitive workplaces and employees who perform safety-sensitive jobs.
2. Duty to Disclose Is Too Broad
Based on case law, there are 3 things employers may ask employees to disclose:

• Current drug/alcohol use;
• Current drug/alcohol dependency; and
• Drug/alcohol dependency in the past 6 years.

What employers can’t ask about is past use. Explanation: Current use and dependency make workplace impairment a compelling safety risk justifying mandatory disclosure; ditto for past dependency over 6 years since scientific evidence shows that users are at heightened risk of relapse during that window. By contrast, courts have ruled that past use (especially going back as far as 6 years) doesn’t significantly increase the risk of current use or impairment.
3. IME Requirements Are Overly Intrusive
While employers have a right to collect private health information about an employee’s drug/alcohol use, they must do it in the “least intrusive” way possible. Because they’re so comprehensive and delve so deeply, IMEs are highly problematic and are generally supposed to be used only as a last resort. There are 2 things about the Model Policy’s IME provisions that courts deem as overly intrusive:

• The IME (and employee’s removal from the workplace) is triggered automatically after an employee discloses without consideration of the employee’s individual circumstances or whether he/she has been involved in any workplace safety incidents;
• The IME is performed by a specialist selected by the employer, which flies in the face of court rulings that addiction specialists be brought in only after attempts to gather the information from the employee’s primary care doctor and that the employee should have a say in which specialist does the exam.

Note: The one thing the provision does right is distinguish between addiction/dependency and recreational use and recognize that the former is a disability subject to accommodations while the latter is not.
4. Return To Work Conditions Are Overly Restrictive
Two of the return to work provisions raise red flags:

• Good News: The required treatment program (Sec. 4(b)) follows medical protocols and best practices; Bad News: The concept of prescribing any single program to be followed in all cases violates the rule that accommodations be tailored to the individual circumstances and needs of the particular employee.
• Requiring employees to undergo a second IME after successfully completing their rehab and treatment programs is overkill (Sec. 4(c)).

The other return to work provisions are generally acceptable and fairly standard, including the requirement that employees abstain from drug/alcohol use (Sec. 4(a)) and submit to random testing during the process (Sec. 4(d)).
5. Requiring Last Chance Agreement Is Unfair & Discriminatory
Agreements giving wayward employees one last chance to save their job provided they don’t slip up again are fine for disciplinary, performance and other workplace problems, even in cases where the workplace problems were related to an employee’s drug/alcohol addiction or dependency. What makes the last chance provision in the Model Policy problematic and distinct from other last chance agreements involving employees with drug/alcohol problems is the trigger, namely, the employee’s self-disclosure that he/she has such a problem even if the employee hasn’t created any actual workplace problems or committed any disciplinary infractions. In other words, simply having a drug/alcohol dependency or addiction is treated as an offence requiring automatic imposition of a last chance agreement instead of a disability requiring accommodation.
What the Policy Should Say
The good news is that the Model Policy’s approach is sound and can be made right by some key corrections. Click Here for a cleaned-up version.

[vickyp]

in reply to: Answer for Covid Testng – policy #87241

Not exactly that. What we do have is a broader COVID Screening Policy. https://hrinsider.ca/model-covid-19-pre-screening-temperature-checks-policy/   But I’m planning to create a COVID testing policy in the coming week. If you send me your email address, I’ll share the research and provide you an advance copy. And if it’s urgent, I can do it during the day tomorrow. glennd@bongarde.com 

[vickyp]

in reply to: Answer for Medical/Dental Benefits- Maternity Leave #87240

I forwarded your Q to our payroll expert, Alan McEwan. Here’s his response. Hope this helps. Glenn
****
I think the short answer is no:

1. This would be an attempt to change the terms and conditions of work for an employee because of a protected ground.
2. If this only applied to people who went on a maternity or parental leave, that in itself would be discriminatory.

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