Exceptions key to vaccination policies as more companies require shots, experts say

·3 min read

TORONTO — As more Canadian companies implement vaccine policies for staff and clients, an employment lawyer says provisions that still allow unvaccinated people to participate are at the core of their legality.

Porter Airlines and Sun Life Financial Inc. recently joined a growing list of Canadian businesses that will require their employees to be vaccinated, but there are caveats.

Porter Airlines says unvaccinated employees can still work provided they get tested 72 hours prior to a shift, and said it'll provide free rapid testing in certain jurisdictions.

"At the core of it, it's to ensure the health and safety of our team members and as well passengers," said Michael Deluce, president and CEO of Porter, which has not been operating for more than a year due to the pandemic.

"With our relaunch on Sept. 8 ... we wanted to have the safest possible environment from the get-go."

Sun Life said only employees that choose to return to the office during an ongoing back-to-work trial will have to be vaccinated. The insurance company recently announced it would allow most of the company's 12,000 employees to work from home as a long term policy.

As companies operating under federal regulations, Porter and Sun Life would have fallen under the government's developing plans to require federal workers to be vaccinated.

However, the companies said they have been planning to implement a vaccination policy for on-site workers for some time.

"Fundamentally health is part of who we are, it’s part of our purpose," said Sun Life President Jacques Goulet

"We want to make sure as we gradually make our offices available for work, that it’s a safe environment, and the full vaccination for us was an important step."

But employment lawyer Hermie Abraham said a vaccination policy such as Sun Life's is only legally tangible because of the fact that workers are still able to be unvaccinated and working from home.

The same is true for the policies of entertainment company Maple Leaf Sports and Entertainment and Porter, which have provisions for unvaccinated employees to work with regular testing.

"The employer can set the rule — there's nothing in law that says you can't set a rule — but for that rule to be able to be legally dispensable for existing employees, you want to make sure you're giving them options to comply," said Abraham.

Since there are other protective measures against COVID-19 such as social distancing, masking and testing, she said there are ample ways for employers to allow unvaccinated people to work safely.

However, she said companies won't be on the hook for costs that employees incur from being unvaccinated, such as if they are required to pay for COVID-19 testing in the future.

She compared it to a company moving its headquarters from one location to another, which could cost an employee more money for commuting.

"That's not necessarily the employer's problem," said Abraham.

Abraham said even though employees might incur a financial cost for testing, they were offered the ability to avoid it by getting vaccine. That means an employer can reasonably decide not to cover the costs associated with being unvaccinated, she said.

As companies wait for more details around federal government requirements, Sun Life said it's also waiting before it decides whether its own vaccination requirement for on-site workers will continue past the current back-to-work trial, when offices are operating at 25 per cent capacity.

"We'll cross that bridge when we get there," said Goulet.

"We may find there's new information popping up, we may find in a few months the government will declare officially that the pandemic is over; there's so many variables."

This report by The Canadian Press was first published Aug. 18, 2021.

The Canadian Press

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