Hosting a workplace vaccination clinic? Think it through

By Tony Poland, LegalMatters Staff • Employers looking to take the government up on an offer to host workplace COVID-19 vaccination clinics need to weigh the benefits and the risks first, says Ontario employment lawyer Nadia Zaman.

As part of its vaccination strategy to target high-risk neighbourhoods, the Ontario government announced it was working with large employers, business groups and public health units to explore the concept of employer-operated clinics.

The clinics would be set up, funded and operated by the employer within COVID hot spots to vaccinate employees aged 18 and over as well as members of the community.

“Certainly, there are aspects of this plan still to consider but for the employer, they are not only taking steps to ensure a safe workplace, but they’re also actively helping reduce the spread of COVID,” says Zaman, an associate with Rudner Law. “It might actually end up making good business sense for companies because the sooner workers are vaccinated, the sooner employers can ensure a safe workplace.  And by vaccinating the general public, employers who step up would probably gain a positive reputation within the community.”

Must have public health unit support

The government says employers must have the support of local public health units and hospitals to take part and the programs need to be consistent with local plans. Companies must also meet the following criteria:

• The workplace must be located within an identified hot-spot community and have had a previous COVID-19 outbreak or is at risk of an outbreak.
• The onsite clinic will vaccinate employees who cannot work at home, many of whom reside in hot-spot areas.
• The employer will also vaccinate those in the local community, either at the onsite clinic or an alternative location, in consultation with the local public health unit.
• The employer will take on the responsibility of setting up, operating and funding the onsite vaccination clinic as well as the community clinics being sponsored if not onsite.

Zaman says with the correct procedures in place, the workplace sites can be a win-win.

“Obviously most of us want the vaccines to be rolled out as quickly and efficiently as possible, but at the same time, we want to ensure that it is done cautiously,” she tells LegalMattersCanada.ca. “We still have to see what the strategy entails and how it will be administered.

“But if we go back to basic principles, employers have an obligation to take reasonable steps to provide a safe workplace,” Zaman adds. “So, if an employer is eligible to host an on-site clinic it might be worth applying.”

Employers need to follow guidelines

She says because local public health bodies must be involved, employers will need to follow certain guidelines. 

As well, it is important to remember that whether their employees are getting vaccinated at work or at other clinics, employers are still bound by applicable employment laws, says Zaman. 

“While hosting a clinic might be convenient for both employers and employees to ensure essential workers are getting vaccinated, it does not necessarily mean employers have the right to force staff to take part,” she says. “Some employers might be thinking that given the COVID-19 situation, they can mandate vaccinations. But in reality, the balance between privacy and health and safety needs to be assessed in each case. 

• Employers must be proactive when dealing with racial equality
• Employers must consider legal obligations during COVID-19 crisis

“Similarly, employers cannot discriminate against employees on the basis of a protected ground under applicable human rights legislation.”

For example, Zaman explains, if a worker is unable to get the vaccine due to a disability, the “employer would have an obligation to accommodate them up to the point of undue hardship.” 

She says disability is “very broadly defined” in the Ontario Human Rights Code (the Code).

“It is going to have to be assessed in the context of each case,” Zaman says. “There doesn’t even need to be an intent of harm to a particular employee for discrimination to occur.”

Workers may refuse to take part

She says some people assume that workers would jump at the chance to get the COVID vaccine but there could be cases where employees may refuse. It might depend on how workers view the employer’s response to the pandemic, Zaman says, adding a negative opinion could create a lack of trust. 

Employers must also assess the needs of the workplace. Are employees working remotely, do they regularly have in-person contact with the public, did they work in close quarters with colleagues?

“Depending on the nature of the role, a worker who refuses the vaccine might need to be deployed to another role within the company where they’re not interacting with others, or provided with other accommodation,” Zaman says.

She says workers cannot simply refuse the vaccine and seek accommodation under the Code without a sound reason.

“If the employee requests accommodation, there must be a legitimate reason why the employee is not comfortable taking it,” Zaman says. “Mere political opinion does not engage provisions within the Code.”

She says employers should also remember that vaccinating their staff does not abdicate their responsibility to provide a safe workplace.

Protocols still need to be followed

“There are protocols in place to deal with the pandemic that must remain in place despite the vaccinations,” Zaman says.

She says those companies who do take part should first seek advice.

“I would strongly recommend approaching this very cautiously,” Zaman says. “Employers need to ensure that they take stock of how this type of program actually relates to their existing policies and procedures. 

“Several obligations might be interacting and it would be unwise to jump in without considering how it impacts their obligations to employees as well as to other third parties,” she adds. “Getting legal advice will ensure they have the proper programs in place and that they are implementing them accordingly.”

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