Employers’ conundrum: Vaccinations and the workplace

By: Kathryn Tremblay, Co-Founder and CEO Altis Recruitment, an affiliate of excelHR

doctor gloves holding vaccination
As employers across the country rush to develop Return to Office plans, new COVID variants like Delta are throwing a wrench into them, creating confusion and uncertainty.

Every week I receive questions from clients nationwide about vaccinations in the workplace: Can employers require them for all on-site employees? Can employers ask staff to confirm if they’ve been vaccinated? Can employees ask if their colleagues are vaccinated?

Unfortunately, in the absence of federal and provincial government direction, there are many more questions than answers, leaving employers scrambling to make sense of it all.

High-level legal balancing act

The legalities around this issue are confusing: employers have to walk a fine line between employee health and safety, and the right of fellow workers to feel comfortable at work on the one side—and human rights, labour and privacy legislation on the other. There are also complex ethical questions to consider around the balance of public and private responsibility.

As the employer, we seek to protect employees’ health in the workplace—in fact, it’s our legal responsibility to do so. And we also need to support an individual’s rights to privacy (especially related to sensitive health information) and their human rights (for example, the right to refuse vaccination based on personal or religious beliefs or for health reasons).

I’m not a lawyer.

I’m not a privacy expert.

I’m a businessperson who wants to nurture a great culture and run a successful business.

What can I do? How can I best balance both sides of the equation? I know for one, I can’t turn to news from south of the border for guidance.

Remember: Canada differs from the United States

Many of my contacts point to American news about vaccinations in the workplace: President Biden has mandated that all federal government employees be vaccinated; proof of vaccination will be required to enter and work in restaurants, fitness centres and indoor entertainment venues in New York City; United Airlines is mandating vaccinations for all US-based employees; the American Department of Veterans Affairs has mandated vaccines for its front-line workers.

The list goes on.

As of today, Canadian employers who require vaccinations in the workplace could be challenged in court for infringing on an employee’s right to privacy and/or their human rights. Imagine an employee who is not vaccinated claiming they were passed over for a promotion given their vaccination status; or imagine a leader sharing who is and who is not vaccinated, and the fall-out it could have on the workplace culture and the conflict that could arise.

Signs of change in Canada

There are growing calls for greater clarity when it comes to vaccinations in Canada’s workplaces.

The Canadian Medical Association (CMA) and the Canadian Nurses Association (CNA) have both called for mandatory COVID-19 vaccinations for health care workers; Seneca College became the first post-secondary institution to require vaccines for in-person teaching and learning; and the CFL has created a new policy urging players to get vaccinated (or forfeit their pay if they have to cancel games due to COVID).

Last week, Prime Minister Justin Trudeau said the government is considering making vaccination mandatory for all federal public servants and employees in federally regulated industries (incl. planes and trains). Also last week, Quebec announced it will be the first province to create a vaccine passport and is also considering imposing a vaccine mandate for health-care workers (not for other public sector employees).

Mask or vax (or test)?

Until our governments issue clear mandates or until employer actions are fought in the courts, employers are left to develop their own individual approaches. Some are suggesting “mask or vax,” while others are turning to Rapid Testing for all employees or those not vaccinated. However, while both suggestions are supportive of health and safety practices, they risk creating a two-tier treatment of individuals, calling out those who are not vaccinated… which brings us full circle back to privacy and human rights concerns.

Others are seeking to craft well-defined HR policies, but finding them elusive due to their generalities.

What can employers do right now?

  • Communicate both in writing and verbally about the company’s commitment to maintaining a safe work environment for those who are on-site. At Altis, we’re planning to share a newsletter with our team that provides key reminders and relevant processes related to the health & safety of our staff.
  • Continue all best practices for maintaining a safe workplace, including social distancing and masks in common areas.
  • Consider drafting a casual FAQ that addresses the specific concerns your team might have related to vaccinations and how you would currently address them. Wherever possible, use plain, accessible language to help alleviate anxiety your team might be feeling.
  • Provide your team with an anonymous way to voice any concerns they have about their health & safety on-site. For example, through an anonymous survey, a physical “suggestion box” in the office where they can submit questions anonymously, etc. The key thing is to create a safe space, so employees feel they are contributing to the decisions being made and that their voices are being heard.
  • Educate your leaders and team members about the many aspects of vaccination and seek to maintain a conflict-free workplace.
  • Stay tuned for regular employment and legal updates from government and public health sources.
  • Take one step at a time, day by day, and be open to continuous change.

Do you have any questions? Any suggestions to share? Email us at: HRTopics@excelHR.com

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