The COVID-19 pandemic continues to create new and difficult challenges for employers. As we turn the page to 2021, many organizations are now considering whether or not they can require employees to be vaccinated as a condition of continued employment. Canadian legal rules on mandatory vaccination are currently unclear, so the specific approach to follow will need to be developed in the coming months.
Limited Existing Statutory Obligations
The existing legal statues in Canada already provide at least some support for the concept of mandatory vaccinations. An example is the rules set out in various Ontario statutes, including for child care, long-term care and ambulance services. In each case, Ontario imposes legal requirements that relevant workers be immunized based on prevailing practices or directives. There are also comparable rules in place which generally require school-aged children to be vaccinated. Canada also has federal law requirements that certain workers engaged in vaccine manufacturing be themselves vaccinated.
These current rules are, however, intended to address the specific health and safety concerns of identified groups of workers or students who are at greater risk of being exposed to or transmitting infectious diseases. The whole point is that there is a limited group who essentially are the high-risk population, which thus justifies unique rules which are limited to the specific population.
While there have not yet been any COVID-19-related laws introduced to address the specific risk of this particular virus, there may be an expansion of existing laws to address certain categories of workers, either as currently in place or for some larger group. However, given the concept of limiting the rules to those most at risk, the existing rules will not necessarily be the basis to impose a “one size fits all” approach to all employers, and instead a more close review of circumstances will likely prevail.
Selected Rules May (or May Not) Be Enforceable
There have been a number of Canadian legal cases involving challenges to employer policies which have attempted to implement mandatory vaccinations. These cases are potentially distinct from the current context of the COVID-19 pandemic for a number of reasons, including that: 1) the group of workers covered by relevant policies has usually be in the health care sector (ie. a group which is subject to the same considerations are the statutory rules referred to above); 2) the employers have been able, at least in some cases, to assemble compelling medical or scientific evidence to support their policy – not something which is currently easy to do with respect to COVID-19; and 3) the contested policies have involved rules which operate on a “Vaccinate or Mask” rule (a so-called “VOM Policy”), meaning that those who wish to refuse to be vaccinated essentially have a route to compliance by wearing a mask. At present, the effectiveness of vaccines, masks or other measures is still potentially subject to being disputed. That said, the existing cases do seem to suggest that protecting the health and safety of employees and the workplace are genuine and proper interests which deserve protection. This then suggests that employers will need to build their case, using objective and expert evidence, about the legitimate reasons for implementing any rules or requirements related to vaccination.
Occupational Health and Safety Considerations
Canadian health and safety legislation provides that employees have the right to a healthy and safe workplace. This employee right is twinned with an employer duty to protect employees from work-related illness or injury, and to provide a safe workplace. To fulfill this duty, employers are required to take precautions to meet reasonable health and safety standards, which can include the introduction of measures to limit the spread of infectious diseases. This employer duty to protect employees and the workplace will be subject to reasonable limitations, so it will not be possible to baldly assert a health and safety rationale without appropriate supporting evidence. In other words, many of the same considerations which apply to the development of a policy, including the need for objective medical evidence, will also be important.
Human Rights Considerations
It is possible that employees may object to a mandatory vaccination rule by claiming human rights protections. Canadian human rights legislation might be invoked, based on the assertion that certain individuals may refuse to be vaccinated as a result of their creed (religious belief) which opposes certain medical treatments. This argument has not been fully tested, and employers are likely to be quite cautious about actually accepting this rationale. Under some existing Canadian laws which mandate vaccinations for children, there is a requirement to provide a written statement, which is subject to challenge, to support a claim for an exemption from vaccination. This topic provides a further reason for employers focus on the medical support for the approach which is followed.
Employers should anticipate that some employees will invoke privacy rights as part of opposition to mandatory vaccination rules or a VOM Policy. The legal analysis here will likely be similar to what has been applied in Canadian workplace drug testing cases, with a focus on balancing organizational and employee interests. In on leading decision involving a VOM Policy, the arbitrator said that this approach did not breach of employee privacy rights. The key was that the policy, which applied to health care workers during flu season, was a properly constructed safety measure which had been implemented for legitimate reasons, including the protection of patients. As a result, any potential harm to the privacy interest of the health workers was justified. It should be emphasized, however, that a VOM Policy, which allows for the “opt out” from vaccination by wearing a mask, is less intrusive than an immunization requirement, which could be seen as an extreme intrusion.
Takeaways for Employers
Canadian employers will soon be confronted with needing to decide whether they will make vaccination mandatory. At the law currently stands, there is no clear guidance about the enforceability of any particular approach. There are, however, likely to be some complications if an employer insists on vaccination as a condition of ongoing employment. In any event, there appears to be a consensus that the current risks may support a more strict approach, which essentially would allow for fairly narrow exceptions, such as religious accommodation. To achieve the most sensible and consistent outcome, there will need to be proper scientific and medical support for relevant rules, and the policy itself will likely require periodic review and revision. In all cases, proper objective evidence will help provide the rationale for the employer’s decision about a key health and safety decision. Proper consideration of medical and scientific information will also mitigate what might otherwise be an effort by some to resist vaccination based on grounds such as privacy issues. As these issues evolve, it will be important to review the specific workplace and relevant risks which are unique to that workplace.
While the global pandemic has understandably been the focus in 2020, Canada’s federal government confirmed on November 30, 2020 that it plans to proceed in 2021 with previously-announced income tax changes which will amend the rules regarding employee stock options. In its Federal Fall Economic Statement 2020, the government said it would proceed with changes which will limit the availability of the existing (50 per cent) deduction limit on employee stock option changes.
When implemented, the amended rules will apply to stock options granted after June 30, 2021. (This schedule for implementation defers what had been announced in 2019). The existing rules would continue to apply to options granted before July 1, 2021.
The proposed changes will include a new CDN$200,000 limit on the value of stock options that may vest for an employee in a year and continue to be eligible for the current deduction. This existing deduction has the effect of allowing all of the stock option gain to receive capital-gains like treatment. The new CDN$200,000 cap will be measured based on the fair market value of the underlying shares at the time the options are granted. Options vest when they first become exercisable. The rules will include provisions intended to prevent the use of multiple corporations or related companies in an attempt to access the individual limit more than once.
In conjunction with the adoption of the new stock option rules, employers who operate options plans will be required to notify employees (at the time of an option grant) and the Canada Revenue Agency (at the time of filing of their income tax return) if any stock options which have been granted are not eligible for the 50 per cent deduction because of the new rules. In other words, employers will essentially be required to advise the government about all options, including whether or not the options are qualified or non-qualified options for the purposes of the CDN$200,000 individual limit.
In cases where an employee exercises a stock option that is in excess of the CDN$200,000 individual limit, the difference between the fair market value of the shares at the time the option is exercised and the amount paid to acquire the shares will be treated as a taxable employment benefit. The full amount of this employment benefit must be included in the employee’s income for the year when the option is exercised. This approach is consistent with what applies to other forms of employment income. In this scenario, the employee would not be entitled to the stock option deduction in respect of the employment benefit.
The new Canadian employee stock option rules also have implication for employers and their corporate tax and related obligations. For options in excess of the individual CDN$200,000 limit, the employer would be entitled to an income tax deduction in respect of the stock option benefit included in the employee’s income. As a result, employers subject to the new rules would also be able to choose whether to grant stock options under the existing treatment (up to the CDN$200,000 limit per employee), or whether to grant stock options under the new tax treatments (which would be ineligible for the employee stock option deduction, but be eligible for a deduction for corporate income tax purposes).
The 2020 Fall Economic Statement includes new information about which entities the new rules will apply to. The new rules will generally apply to employers that are corporations or mutual fund trusts. The new rules will generally not apply to Canadian-controlled private corporation (CCPCs). Further, based on a stated recognition that certain non-CCPCs could be start-ups or emerging companies, those employers whose annual gross revenue does not exceed CDN$500 million will generally also not be subject to the new rules.
The amended rules for Canadian stock options will invariably result in closer scrutiny by employers with respect to their compensation programs and related obligations. As a consequence, we can expect to see more activity on this in early 2021 and beyond.
International Bar Association – 27 October 2020
‘Taking a genetic test that could save your life should not come at the price of you not being hired or promoted, or not being able to adopt a child or to travel, not being able to get insurance or access childcare’, says Marcella Daye of the Canadian Human Rights Commission.
Canada’s highest court recently upheld a Canadian federal law which prohibits discrimination based on genetic grounds. The implications of this decision are potentially quite broad, both for workplace rights and for the approach to discrimination more generally.
We are living in an age where the private citizen is no longer so private. Both public and private organizations are collecting data from citizens both overtly and surreptitiously. Most of this data collection is said to be for business purposes, such as managing employment relationships, targeting individuals with ads, or catering a service based on previous recorded choices. However, some of the data collected is highly personal and goes beyond the record of what was purchased on an online shopping spree. As technology and science continue to innovate, the disclosure of personal data, such as genetic information, has increased dramatically.
In 2003, the first human genome was decoded. Genetic science and the related applications of this learning and technology have surged since then. Now, in 2020, individuals willingly provide their genetic data to organizations (medical or otherwise) for a wide range of purposes, including helping to diagnose and treat complicated illnesses or to learn about potential health threats to which their genetic composition is more susceptible. Other organizations, such as 23andMe or AncestryDNA are using individuals’ saliva to create genetic profiles which provide a comprehensive ancestry breakdown and trait reports. All of this has resulted in a dramatic increase in the number of individuals whose genetic information is collected and available.
Although this rush to develop and adopt scientific tools appears initially to be an unmitigated positive development, genetic testing opens the door to potential repercussions, especially regarding employment or insurance opportunities. Ultimately, the Canadian government acknowledged that legislation was needed to protect the individual’s autonomy over their genetic information and passed the Genetic Non-Discrimination Act (‘Genetic NDA’) in 2017. Since that time, this approach has faced criticism on constitutional and other grounds, as described below.
Overall, the Genetic NDA aims to protect the autonomy and privacy of Canadian individuals over their genetic information. It does so by altering three longstanding pieces of legislation in Canada – the Canada Labour Code, the Canadian Human Rights Act, and the Criminal Code. Generally, the Genetic NDA amends the Canada Labour Code to protect employees from obligatory genetic testing. It also adds genetic discrimination to the prohibited grounds of the Canadian Human Rights Act. Lastly, it creates a new Criminal Code offence for anyone who requires a person to undergo a genetic test or provide the results of an existing test as a condition of receiving goods or services or entering into a contract. Penalties under the Genetic NDA can be up to CAD1,000,000 in fines and five years imprisonment. The law is then subject to certain limited exceptions, such as medical, pharmaceutical and scientific purposes, which would not apply to most employers.
Legislative challenges arose soon after the Genetic NDA came into force. The Government of Quebec argued that the legislation fell outside of federal jurisdiction as it seeks to regulate information that may be used by insurance companies and employers, both of which are arguably within provincial jurisdiction under the Canadian Constitution. The Quebec Court of Appeal agreed with the province of Quebec, finding that the substance of the legislation fell outside of the federal jurisdiction to make criminal law. As a result, the Genetic NDA was held by the Quebec Appellate Court to be unconstitutional. The Canadian Coalition for Genetic Fairness appealed the decision to the Supreme Court of Canada (the SCC).
In ‘Reference re Genetic Non-Discrimination Act’ in July 2020, a 5–4 majority of the SCC held that the Genetic NDA was constitutional and was a valid exercise of federal jurisdiction. The SCC’s decision centred around a discussion as to whether the legislation was enacted for a valid criminal law purpose. The decision ultimately provides an acknowledgment of the paramountcy of individual’s right to autonomy and privacy over their genetic information. Further, the reasons given by Justice Karakatsanis profess that genetic identity is at the heart of a biographical core of information and its protection is therefore warranted. The majority reasons of the SCC point out that the text of the legislation provides strong evidence that its main purpose is combatting genetic discrimination based on test results and that the more precise mischief they are intended to address is the lack of legal protection for the results of genetic testing. The minority felt that this legislation was more aptly left to the jurisdiction of the provinces who have authority to legislate contracts and provision of goods and services. The minority also raised the consideration that as technology continues to develop and similar legal issues are raised, the balance between federal and provincial jurisdiction may be called into question. While the majority’s reasons reflect a ‘narrow win’, the outcome confirms that genetic information will now be considered worthy of express protection under Canadian law, both by way of the criminal law and workplace discrimination provisions.
Through the life cycle of the Genetic NDA, politicians, medical experts, technology experts, and legal experts were all called on to consider the impacts that genetic information can have on the individual. The positive effects of genetic testing are primarily centred around the overall health of the individual and, in turn, overall improvement of public health. Genetic testing allows medical professionals to better understand illness and disease and can even provide treatment for a condition that may develop in the future. Genetic testing can eliminate much of the trial and error process that medical professionals must carry out. However, a main point of discussion for the SCC involved the possible negative effects of genetic discrimination and related public fears about genetic discrimination. Experts in Canada’s parliament had explained that fear of genetic discrimination has led many Canadians to forego testing (for themselves or for their children) that could have been integral to ensuring good health. The factors that these individuals feared included loss of insurance, employment and social opportunities. This discussion provides a key backdrop for future law makers who face similar technological and moral dilemmas. The SCC’s decision may also, perhaps perversely, provide greater encouragement for individuals to proceed with genetic testing: fears of discrimination will presumably be reduced now there are assurances that Canadian law will protect the information obtained from such tests.
Many aspects of Canadian life may be affected by this decision including (but not limited to) employment, insurance, adoption, housing, consumer genetic testing and government services. Further, the result of this decision will have an effect on technology and science for decades to come. As new technologies such as biometrics, face recognition, or thermal detection continue to touch the lives of private individuals, Canada and other countries around the world will have to make decisions about how to regulate these innovations. The law will ultimately be catching up to new technology and will likely have to contend with difficult decisions about the approach to new developments. Ultimately, this decision shows Canadians that the government still holds paramount the autonomy and privacy of the individual and their personal genetic information.
2020, SCC 17 (CanLII)
Over the past eight months, individuals in Canada and around the world have been provided with differing messages on how to stay safe during the COVID-19 pandemic. These mixed messages and directives have arisen in part because of ongoing research and studies by health officials and scientists – as they discover new information and data about the coronavirus, relevant recommendations have changed.
The evolving views about best practices has resulted in increased scrutiny from the public and the press. This has particularly been the case as the relevant government authorities continue to change recommendations and guidelines relating to safety during the pandemic. These continuous changes have left individuals and businesses questioning if they are protected from potential liability arising from operating during the pandemic. In response to this situation, Ontario’s provincial government introduced Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, 2020 (the “Act”) on October 20, 2020.
The Act is a new form of legislation which aims to protect any person from civil liability resulting from individuals being or potentially being infected with or exposed to COVID-19. The protections extend to “any person”, which is defined broadly meaning any individual, corporation, or other entity, including the Crown in right of Ontario. The caveat is that any person will only be eligible for the statutory protection of the Act if they can demonstrate that they have acted or made a “good faith effort” to act in accordance with both:
- public health guidance relating to COVID-19 that applied to the person; and
- any federal, provincial, or municipal law that applied to the person.
The Ontario government’s decision to introduce the Act is consistent with requests from organizations who have expressed concerns about the costs and related risks of operating during the pandemic. The Act is intended to establish a defence based on compliance with applicable law and related guidelines.
The Act defines the “good faith effort” which organizations are expected to engage is as an honest effort, whether or not that effort is reasonable. Although this language is seemingly broad and open to interpretation, the expectation is that persons will continuously monitor and implement measures intended to adhere to public health recommendations and legislation.
Ontario’s Attorney General, Doug Downey, has said that the Act is not meant to provide coverage for “bad actors” but rather to “provide legal shelter for frontline workers and volunteers who have sought out the best COVID-19 advice and followed it, who made an honest effort in good faith.”
The new concept of “public health guidance” is also incorporated in the Act, and this is defined as advice, recommendations, directives, guidance or instructions, from various individuals and government bodies, including the Chief Medical Officer of Health, public health officials in the Government of Canada, ministers or ministries of the Government of Ontario or Canada and its officers or employees, and municipalities and their officers or employees.
The Act does not protect against acts or omissions which constitute gross negligence or acts or omissions by persons who were operating contrary to a law which required the person’s operations to close. The Act also does not define gross negligence, but the accepted common law definition as applied by the Courts in Ontario provides that gross negligence requires a higher level of misconduct than standard negligence.
The Act also excludes causes of actions and proceedings with respect to:
- Workers employed by Schedule 1 or Schedule 2 employers as defined in the Workplace Safety and Insurance Act, 1997 (which include hospitals and certain non-hospital health care employers) in respect of a personal injury by accident arising out of and in the course of the worker’s employment or an occupational disease; and
- Claims made by employees against employers relating to actual or potential exposure to or infection with COVID-19 that occurred in the course, or as a result, of employment.
If, as expected, the Act receives Royal Assent, the Act will apply retroactively to infections or exposure to COVID-19 on or after March 17, 2020. This means that any proceedings which commenced before the Act came into force will be deemed to have been dismissed without costs.
Takeaway for Business
Every person should do their part to attempt to prevent the spread of COVID-19 in their community. Businesses and individuals must continue to remain current on and take steps to comply with public health and government advice, recommendations, or instructions. By doing so, most persons will qualify under the Act to avoid any liability arising from the spread or potential spread of COVID-19. The Act excludes specific claims which may arise in the context of an employment relationship. However, the defence of following relevant public health guidelines and other applicable law is likely to be one of the foundations of a successful defence against any such claims. Further, many workplaces also have some element of interaction with or access by the public. As a result, the Act serves to reinforce the benefits from a legal perspective for businesses to comply with relevant public health requirements and recommendations.
As of October 2, 2020, Canada’s most-populated provinces have reported increased numbers of COVID-19 cases. As a result, the second wave of the pandemic is upon us.
In response to the increased numbers, provincial governments across the country are working on tightening rules and passing regulations to ensure the safety of their citizens.
One concrete example this past week is that the Ontario provincial government has passed regulations that make pre-entry COVID-19 screening of all workers and “essential visitors” mandatory for all businesses in Ontario. This amendment became effective as of September 26, 2020 and applies across to all workplaces, regardless of sector.
Ontario’s new workplace restrictions modified Ontario Regulation 364/30 “Rules For Areas In Stage 3” under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020. This amendment adds a new requirement that all persons responsible for businesses or organizations which are open, operate the business or organization in compliance with the advice, recommendations and instructions issued by the Office of the Chief Medical Officer (“CMO”) of Health on screening individuals.
The Ontario CMO recommendations identify questions which need to be asked during the screening process and the parties that must be screened. The CMO requires that screening should include all employees, contractors, students and volunteers. It also requires screening of “essential visitors”, defined as people that are not employees but provide a service in the workplace. The recommendations identify contract workers, delivery people, and maintenance personnel as examples of “essential visitors”. The testing does not apply to customers or patrons of a business that serve the public directly (for example restaurants, retail, or other businesses which are operating and open to the public).
The required testing must occur before or when a worker enters the workplace at the beginning of the day or shift, or upon the arrival of the “essential visitor”. There are three questions that are to be answered by workers and essential visitors and any person who answers “yes” to any of the questions must be excluded from the workplace (even if working outdoors). The excluded person must be advised to contact Public Health for guidance on whether they need a COVID-19 test. Temperature checks are not required under these rules, and screening is not mandatory for workers who are working from home.
Ontario’s amended rules do not prescribe the exact way in which businesses must implement the pre-entry screening. Therefore businesses can implement the pre-screening in a way which is most effective for their business provided that it is taking place and that it can be demonstrated to a regulator (likely either Public Health or the Ontario Ministry of Labour, Training and Skills Development) that it is compliant.
These new rules mean that businesses will need to not only adopt proper processes, but also have a system to record screening activity and results. Employers should also create a system to request confirmation that a person who was previously denied entry due to the screening process has cleared all needed medical checks to enter the workplace safely.