In-house counsel must dodge a number of pitfalls: lawyer
As the pandemic continues to evolve and tighten its hold on society, more and more businesses are implementing mandatory vaccination policies, requiring employees to be fully vaccinated. The federal government recently urged provinces to introduce mandatory vaccination policies in the coming months to deal with surging COVID-19 caseloads.
While these policies can be an effective way to create and maintain a safe workplace, they also carry human rights, privacy and other legal implications. Moreover, distinguishing between legitimate and invalid requests creates further challenges for in-house counsel.
The most important step for in-house counsel is to ensure they have a proper framework in place because any decision surrounding a vaccine exemption request may be litigated in the future.
“Without a framework in place, it is much more difficult, if it’s challenged at a later date, to explain the reasoning process that you went through,” says James Fu, partner at Borden Ladner Gervais LLP.
Fu recommends examining the organization’s vaccination policy carefully to ensure that all necessary steps are taken when assessing an exemption request. Standard steps within the policy may include:
“It is important to make sure the record reflects an objective and reasoned decision,” says Fu. While an employee may have a valid exemption for medical grounds, it may still be inappropriate for that person to work because of specific risks present in that particular workplace, he adds.
Fu notes that the vast majority of vaccination exemption requests are based on religious belief or creed, rather than for a medical reason – likely due to the evidence required for medical purposes. A medical exemption usually requires a certificate from a medical practitioner, indicating a legitimate reason such as a severe allergic reaction to a previous dose of a COVID-19 vaccine or a diagnosed episode of myocarditis after receipt of an mRNA vaccine. Even with religious exemption requests, only a small per centage are granted, Fu says, because the individual must prove that they have a sincerely held belief or practice grounded in religion that calls for a particular line of conduct. Creating your own creed to avoid vaccination will not be considered a legitimate reason for exemption, for example.
Distinguishing between legitimate and invalid requests can be extremely challenging, especially with vaccination exemption letter templates now being widely circulated online.
Just because it’s a template, doesn’t necessarily mean it’s not legitimate, Fu says, but in-house counsel should examine it closely, and perhaps work in conjunction with HR professionals and external counsel partners to make a determination.
The situation is likely to continue evolving throughout the next few months as more and more employers start to consider implementing mandatory vaccination policies and some provinces may even force the issue. Many organizations are also imposing obligations on their partners and contractors, requiring that anyone visiting the site must be vaccinated.
“For employers that haven’t yet put in place a mandatory vaccination policy, I think they will be considering it more and more now, and not just in high-risk settings,” says Fu. “Another thing that employers are going to have to look at is the potential changing definition of ‘fully vaccinated’. Right now it’s very fluid.”
With 13 different jurisdictions in Canada, national organizations may wish to consider assigning a member of the legal team to monitor the changing laws and restrictions in each jurisdiction to ensure compliance, Fu suggests.
