While social distancing measures are still being recommended as an effective way to minimize COVID-19 transmission in a community, the approval of COVID-19 vaccines for all working-age Canadians by Health Canada has given rise to questions regarding the duty to minimize the risk of contracting and spreading the virus in a workplace.
In response, the Saskatchewan Legislature enacted The Employers’ COVID-19 Emergency Regulations and The Public Employers’ COVID-19 Emergency Regulations. Both Regulations work in concert with The Saskatchewan Employment Act, bringing the issues of immunization and other alternative infection control measures under the purview of the Act’s Occupational Health and Safety provisions.
The Employers’ COVID-19 Emergency Regulations provides employers with the right to implement a policy requiring workers to either show evidence of being fully vaccinated, or provide evidence of a valid negative COVID‐19 test at least every seven days before being allowed in the workplace.
Employees who choose to show evidence of a negative COVID‐19 test instead of proof of vaccination are obligated to take the test during non‐work hours, and are responsible for any costs associated with testing (unless otherwise agreed to by the employer).
Employers who wish to implement such an immunization policy must provide reasonable notice of the requirements to every worker by either personally providing the policy to each employee, or providing the policy in another manner that clearly informs employees of the requirements. In addition, the employer must establish a verification process for proof of vaccination or a negative test, and must take appropriate measures to maintain the confidentiality of the records.
The Public Employers’ COVID-19 Emergency Regulations are nearly identical to The Employers’ COVID-19 Emergency Regulations, with the only substantial difference being that public employers are required by law to implement an immunization policy as outlined in the Regulations. The following entities are considered to be a public employer for the purpose of the Regulations:
- the Government of Saskatchewan;
- a Crown corporation;
- any agency, board or commission of the Government of Saskatchewan, including appointed and elected members and directors;
- the Provincial Auditor of Saskatchewan;
- an Officer of the Legislative Assembly; and
- a constituency office of a member of the Legislative Assembly.
If an employer chooses to implement an immunization policy, or other preventative measure in response to COVID-19, the employer must be cognizant of the effect the policies might have on their employees’ human rights. Employers will need to carefully consider whether any steps taken are discriminatory against any employees, in contravention of The Saskatchewan Human Rights Code or the Canadian Human Rights Act.
While objection to vaccination based on personal preference is not protected by The Saskatchewan Human Rights Code, some individuals are not able to receive the COVID-19 vaccine due to a disability, or another protected ground. Employers have a duty to reasonably accommodate them, to the point of undue hardship, which will differ on a case-by-case basis. In the event an employee does seek an exemption under The Saskatchewan Human Rights Code, an employer has the right to request a supporting medical note. COVID-19 testing requirements may meet the duty to accommodate those who cannot be vaccinated; however, it is recommended that employers seek legal advice before taking action with respect to a request for accommodation.
Any medical information collected pursuant to an immunization policy must be maintained in accordance with applicable privacy legislation. Employers should obtain legal advice regarding the storage and collection of medical information under immunization policies.
In the event that an employee develops symptoms, is diagnosed with COVID-19, or is for any other reason required to self-isolate or quarantine despite the preventative measures taken by an employer, The Saskatchewan Employment Act entitles the employee to 12 days of unpaid leave for non-serious illness, or up to 12 weeks of unpaid leave in the event of a serious illness.
Employees who may have been exposed to COVID-19, but have recovered or completed the isolation period, should not be excluded from returning to work on that basis alone. Terminating an employee because they have contracted or been exposed to COVID-19 may amount to discrimination under The Saskatchewan Human Rights Code.
If you are interested in implementing an immunization policy to mitigate the impact of COVID-19 in your workplace, or if you have any questions related to your rights and obligations as an employer, feel free to contact Lakefield LLP.
This article is of a general nature only. It is based upon laws and policies in effect as of the date noted above, which may change. It is not intended to be relied upon or taken as legal advice or opinion. You should consult with your lawyer to confirm the current state of the law and obtain advice specific to your situation.