The Government of Alberta declared a state of Public Health Emergency on September 15, 2021, and announced new directives to combat the ongoing impact of the COVID-19 pandemic. While the Government of Alberta did not impose mandatory vaccinations, certain businesses and indoor gatherings are affected by the new directives.
The Government of Alberta has approached the COVID-19 pandemic in a different way from the provinces of Ontario and British Columbia, leaving employers with great flexibility (and challenge) to create lawful and pragmatic ways to manage COVID-19 issues in Alberta workplaces.
New September 15 requirements
The Government of Alberta established new requirements for specified businesses, and imposed stringent regulations on indoor gatherings. The practical impact of these directives is to target events where larger groups of individuals congregate. The September 15 directives are not targeted at employers generally, but are instead focused on specific businesses. However, there are two noteworthy directives that apply to all employers in the province:
- Mandatory work-from-home requirement unless the employer has determined a physical presence is required for operational effectiveness; and
- If employees are working on location, they must mask in all indoor settings, except while alone in workstations.
The Government of Alberta created the Restriction Exemption Program (the “REP”), which applies to businesses in the restaurant, retail, entertainment and indoor fitness sectors, effective September 20, 2021. The REP requires people to provide proof of vaccination or a negative COVID-19 test in order to enter the business. The management of the REP is the responsibility of the business and is subject to oversight, audit and inspection by the government. If the business does not want to operate under the REP, then the business defaults to option 2, which contains significant capacity and operating restrictions on the business. The business can choose which option it wishes to operate under. Employees working in these sectors under option 1 (i.e. the REP) are not subject to the REP requirements.
The REP has a significant impact on these businesses and is similar in practical effect to “vaccine passport” arrangements found elsewhere, but this new measure does not address mandatory vaccinations in Alberta workplaces.
The Government of Alberta has stated many times that it will not legislate mandatory vaccinations. Several months ago, the Government of Alberta removed from the Public Health Act the legislative authority to mandate vaccinations, which was consistent with governmental policy to impose the fewest precautions necessary in order to curtail the spread of COVID-19.
There are significant legal issues pursuant to section 7 of the Charter of Rights and Freedoms regarding security of the person, leaving it open to debate as to whether the Government of Alberta – or any government – has the constitutional authority to legislate mandatory vaccination. This issue will undoubtedly be addressed by the courts in other jurisdictions as it is unlikely that mandatory vaccinations will be legislated in Alberta.
The September 15 Public Health Emergency did not alter the fact that there is no current legislative authorization in Alberta which would facilitate an employer’s requirement for a mandatory vaccination as a condition of returning to work or accessing the employer’s premises. Without a statutory authorization, the employer’s ability to impose mandatory vaccination in Alberta workplaces remains limited.
Occupational health and safety
Occupational health and safety (“OHS”) legislation requires Alberta employers to provide a safe workplace, but this obligation is balanced against other lawful considerations, such as privacy and human rights. An employer may seek to justify a vaccination policy on the basis of OHS requirements, but there have been no directives regarding COVID-19 vaccinations issued pursuant to OHS legislation. In light of the Government of Alberta’s prevailing policy to not legislate mandatory vaccination, it is unlikely that OHS officials will do so.
An employer imposing a mandatory vaccination policy must also consider what happens if an employee refuses to follow the policy. Termination or a disciplinary suspension due to a refusal to be vaccinated is likely to trigger a constructive dismissal lawsuit. Justifying a mandatory vaccination policy as being an essential term of the employment relationship will also trigger the expectation that reasonable notice of the vaccination requirement would first be given to the employee. The September 15 directives do not address this concern.
A new way to establish vaccination status
On September 13, 2021, the Government of Alberta announced that Albertans are now able to print a COVID-19 proof of vaccination card or display this information on their phone or tablet. Work is underway to make proof of vaccination available through a QR code sometime in October. Currently, the only ways an employee can demonstrate to his or her employer their vaccination status is to either provide a paper copy of the vaccination receipt provided at the time of inoculation, or to download the employee’s complete inoculation record from Alberta Health. Neither of these current methods are practical for an employer, and each requires the employer to have privacy-compliant processes in place to manage this information. With the Government of Alberta’s new announcement of a digital proof of vaccination, it will be much easier for employers to ascertain an employee’s vaccination status by simply requesting to see the proof of vaccination card. This will be much like requesting to see a driver’s licence before allowing an employee to drive a corporate vehicle, and will preclude the necessity of having to review, record, store, and manage employee personal information, which in turn triggers privacy requirements.
No case law… yet
There are no meaningful court decisions on any of the points raised above. Although, it is noteworthy that various pandemic-related matters, such as wearing a mask, have now been adjudicated by labour arbitrators in unionized settings. While decisions will vary from issue to issue, and depending on the facts in each case, the general trend has been that reasonable efforts taken by employers to manage employees during the pandemic have been upheld. However, inoculation is more intrusive than wearing a mask or engaging in social distancing, which may lead to increased scrutiny by reviewing courts and administrative bodies.
Numerous media reports have indicated that a particular government (notably, for instance, Ontario), or some federally regulated employers, have implemented mandatory vaccination policies. Upon closer examination, it becomes readily apparent that this is not so. Many provincial governments and employers have described their respective policies as “mandatory vaccination”, but are actually policy statements encouraging their employees to become vaccinated. Pursuant to these kinds of policies, the individual can voluntarily disclose that they have been vaccinated or engage in a less desirable alternative. For instance, university employees in Ontario who are not vaccinated or choose not to disclose their vaccination status must participate in a COVID-19 education session; engage in regular COVID-19 testing; and strictly follow PPE requirements in order to gain access to the workplace. This may be a viable way to curtail the transmission of COVID-19, but it does not constitute mandatory vaccination.
For employees opting to proceed by way of proving that they do not have COVID-19, rather than providing proof of vaccination, most employers will require frequent testing, which raises the key question: Who will pay for the test? In the Alberta university sector, some universities initially agreed to pay for the testing, but once the logistics and cost of large-scale and frequent testing programs emerged, the willingness to pay for the tests diminished. More likely than not, most employers will require an employee to pay for the testing. It is noteworthy that the Restriction Exemption Program specifically states that privately paid testing, not government labs, must be engaged by the individual requiring the test.
There are the additional considerations for unionized employers. There may be restrictions regarding testing or vaccinating in the applicable collective agreements. There is a labour arbitration requirement to follow the “KVP Principles” which, ultimately, require the employer to be able to demonstrate that the work rule (i.e. mandatory vaccination) is reasonable. The reasonableness of mandatory testing in a unionized workplace has not yet been addressed in an arbitration award.
Where are we now?
Some conclusions can be drawn, subject to change as further legal developments occur or policy changes are initiated by the Government of Alberta:
- Requesting employee vaccination status will now be easier because of a government-issued proof of vaccination card. The employer can ask to see the card, which will immediately confirm an employee’s vaccinated status without the logistical constraints or financial costs of establishing a stand-alone process that complies with all of the requirements of privacy legislation. The employee will have to cooperate in obtaining a card (by either printing or downloading the card), and then be prepared to show it to the employer.
- As of September 15, 2021, only those employees that are necessary to the operational effectiveness of the employer should be in the workplace, and those employees must follow precautions such as masking, social distancing, etc.
- There is currently no mandatory vaccination requirement in Alberta.
- Once the current COVID-19 situation stabilizes, employers will likely ask their employees to return to the workplace, pursuant to a policy whereby they show proof of vaccination; and if not, then follow a more onerous safety protocol with the intent that many employees will opt to provide proof of vaccination, rather than being routinely tested and mandated to follow stringent PPE requirements.