Published Monday, May 17, 2021 4:51PM CST
WINNIPEG — Most Manitobans, outside of essential frontline workers, are still working remotely from home.
But some workers are already wondering: Will I need to be vaccinated before coming back to the office?
While no formal mandatory vaccine policies have been implemented by any company in Manitoba, they could be on the horizon and, experts say, could be legally justified if certain criteria are met.
“They’re going to have to justify it by proving that there is good evidence that either the employee is going to be at great risk, or that coworkers, clients, or customers are going to be at risk,” said Arthur Schafer, a bioethicist at the University of Manitoba.
Any justifiable mandatory vaccine policy would need to be scrutinized on a case-by-case basis, said Schafer, and a balance would need to be struck between personal liberties and potential risks to others, among other factors.
Employers would also need to prove that other accommodations can’t be made (e.g., an employee working from home) and that a vaccination is necessary for the specific area of work.
“Then an employer may have the legal, and would probably also have the moral right, to say, ‘well, if you want to work in person in this workplace, then you got to be vaccinated.’”
Labour and employment lawyer Scott Hoeppner agrees that a mandatory vaccine policy as an appropriate measure would depend on the workplace.
A company forcing vaccinations upon its workforce could also meet legal challenges.
“It would not surprise me at all if one was challenged,” said Hoeppner, adding that there is no precedent for COVID-19-related legal cases.
Unions add another layer of complexity.
If a workforce is unionized, any policy would need to meet several requirements, referred to as “KPV principles.”
For example, a new policy would need to make sure it doesn’t contravene any existing collective agreements between the union and employer.
“You might even have policies being challenged not because the intention is unreasonable or the policy itself is unreasonable but it might not meet KPV principles.”
Instead of mandating vaccinations, some companies are offering incentives to any worker who gets the shot.
The Winpak division plant in Winnipeg is offering a $50 incentive per employee to those who get their first dose of the COVID-19 vaccine, for example.
But even an incentive can meet legal challenges, said Hoeppner.
If an employee is unable to get the vaccine for medical reasons, they could argue the incentive program is discriminatory.
“Any policy would have to take into account potential human rights concerns and accommodations,” said Hoeppner.
When asked if the Manitoba government would support employers mandating vaccinations among workers, a provincial spokesperson told CTV News that “No provincial regulations support an employer forcing an employee to be vaccinated.”
The spokesperson added that certain medical tests or interventions as an employment requirement are possible if there is a legitimate occupational requirement to do so.
Employers have plenty of questions when it comes to COVID-19 vaccination policies, too.
Lisa Cefali, a partner at Legacy Bowes who advises companies on HR policies, said she has fielded numerous calls with questions from companies surrounding COVID-19.
She said, when it comes to vaccinations, there is no “one-size-fits-all solution.”
“There will always be the need for a case-by-case situation where employers may have to be more adaptable in an area, or a time of year, to the need of a specific employee,” Cefali said.