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| Fiona Brown |
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| Frank Casciaro |
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| Tim Nakai |
The legality of mandatory vaccines has not been conclusively determined by our Canadian courts. We can discern from the authorities that the legality of mandatory vaccination policies is largely dependent on the nature of the workplace. A blanket vaccination policy will not work.
Occupational health and safety legislation imposes a broad duty on employers to protect employees from work-related illness or injury. In the context of imposing a mandatory vaccination policy, this duty needs to be balanced against privacy and human rights obligations.
Courts may consider such policies in the context of high-risk environments differently than other contexts. For example, in hospitals, long-term care homes and other “congregate work settings” (e.g., food processing plants) where there are documented concerns regarding the risk of a COVID-19 spread, there is the potential that an appropriately drafted testing and vaccination policy could be implemented and upheld. However, even in high-risk environments, such policies should distinguish between high-risk and low-risk roles.
Outside of high-risk environments, employers will need to demonstrate that a mandatory vaccination policy is reasonable in the circumstances, which, in general, is going to be difficult. Other measures, such as the continued use of personal protective equipment, strict social distancing measures, or requiring employees to work from home — are likely to remain the most effective options, and a mandatory vaccination policy is unlikely to be justifiable.
Regardless, employers will also need to continue to accommodate employees who cannot get vaccinated for medical reasons or because of protected grounds for discrimination under human rights legislation.
Employers are not, however, restricted from taking action to promote vaccination among their employees. We know from the success of annual flu vaccine drives that certain actions by employers — including sharing information about where and how employees can get their shot and about the benefits of doing so — can dramatically increase uptake. Employers should help address vaccine hesitancy by sharing credible information about the safety and efficacy of vaccines, and by reducing barriers to access that may be dissuading employees from booking an appointment. Employees may be reluctant to get vaccinated during working hours if doing so will result in lost wages or require them to use limited paid time off. Employers should consider providing employees with additional paid time away from work for the purpose of getting vaccinated (and recuperating from any side effects, if necessary), including additional top-up pay if paid time off is now mandated by the province.
If employers decide to request information from employees about their vaccination status, they must ensure that such information is collected and used in accordance with applicable privacy legislation and that they address potential concerns among employees by communicating how their data will be secured. By actively promoting and facilitating vaccination, employers can increase uptake among their employees without implementing a mandatory vaccination policy.
Though it may be tempting to treat vaccines as a panacea, it is important to remember that we are still months away from the majority of the working population being fully vaccinated. In addition to encouraging vaccine uptake, employers should ensure that other policies that minimize workplace spread remain in effect, particularly as offices begin to welcome back employees who have been working from home.
2. Returning employees to work
The transition back to in-office work presents its own set of challenges and considerations. For some employers, the increased prevalence of remote work arrangements brought unexpected benefits, including cost savings and improved productivity. Some employers may choose to integrate flexible remote work arrangements into their business practices for the foreseeable future. Regardless of the approach employers choose to take, communication is key. Employers should prepare their employees for changes to their working arrangements well in advance and ensure that employees have ample notice of any new procedures or protocols that will be implemented to facilitate their return to the office. Employers must carefully consider how they will ensure that appropriate health and safety measures continue to be implemented as their offices become busier. Crucially, they should develop contingency plans in case of unexpected changes to the public health situation.
Employers and employees alike are eager to get back to normal — whatever our “new normal” may look like. As we progress towards that goal, employers must exercise care. Thoughtful planning will help keep employees safe and healthy, while ensuring that the strategies and practices businesses adopt will continue to serve their needs, long after their return to “business as usual.”
3. Remote work options
In the post-pandemic world, many employers may provide the option for employees to continue to work from home or remotely from another location. These locations can be where a company has an existing permanent establishment (PE), or in some cases can create a permanent establishment for the employer. Generally, whenever an employee is working from a remote location different from where the employer normally conducts its business, additional tax exposure may occur in that remote location for both the employer and the employee. This tax exposure can range from requiring the employer to register with other provincial or country’s tax authorities, to generating tax liabilities for the company or employees. This can be problematic if the employer or employee is not aware of this beforehand.
To provide some initial support for these issues, many countries, including Canada, released COVID-19-related tax relief in an effort to help employers and employees avoid or reduce their possible expanded tax exposure in remote locations. However, these measures were only meant to be temporary and are mainly related to PE at a national level. Tax authorities have been silent about similar relief at the provincial level. As we return to the “new normal,” it is important that both employers and employees understand the potential tax implications of remote work and make appropriate arrangements in advance.
Fiona Brown is a partner at Aird & Berlis LLP. You can reach her at FBrown@airdberlis.com or 416-865-3078. Frank Casciaro is senior manager, tax lead, global employer services at RSM Canada. You can reach him at frank.casciaro@rsmcanada.com or 647-730-1417. Tim Nakai is global growth leader – Canada at RSM Canada. You can reach him at tim.nakai@rsmcanada.com or 647-726-0464. Aird & Berlis partner Michael Horvat helped with the preparation of this article. He can be reached at mhorvat@airdberlis.com or 416-865-4622.
Photo credit / Viktor Morozuk ISTOCKPHOTO.COM
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