Can I be fired if I don’t get vaccinated? Experts answer pressing questions about vaccines and the workplace

Canadians are once again navigating a strange new normal.Vaccines offer protection, but what are the rights of those who choose to not get jabbed? When Erin Pepler, a Burlington, Ont. resident, recently booked massage therapist and osteopath appointments, vaccination status was on her mind. “I didn’t really want to flat out ask if they’ve been vaccinated because it felt invasive, but my RMT freely shared this information during an appointment and it definitely made me feel much better about continuing treatment,” she said. “There are high-risk individuals in my household. If a health-care worker told me they were unvaccinated by choice, I’d definitely question their judgment and consider finding a different practitioner.” Anticipating that many clients would have similar concerns, Farzana Mayer, owner of iKhaya Day Spa in B.C., put a plan in place.“In the event that any of our current employees had chosen to not get the vaccine, they would have been placed in a position that does not require direct contact with colleagues or guests. An example of this would be the front-end co-ordinator position behind a Plexiglas,” she said. Ottawa says it is planning to lessen quarantine requirements for travellers who have had both jabs of any two-dose vaccine, but governments have not yet issued specific guidelines around the use of “vaccine passports” in private sectors of the economy. Paul McLean, a specialist in employment law at Mathews Dinsdale, says his firm has been receiving many questions from employers about how they can talk with staff and customers about vaccination.“The limited government advice so far is couched with the caveat that it can all change tomorrow, so it’s quite up in the air,” he said. To seek some clarity, the Star reached out to employment lawyers, labour boards and the Office of the Privacy Commissioner of Canada. The below are general guidelines only, and should not be treated as legal advice. Is it legal for employers to ask staff to disclose their vaccination status?Kirsten Hume Scrimshaw, founding partner of Ally Workplace Law, said employers have to balance privacy concerns and their obligation under health and safety laws to provide a safe space for employees and the public.“Business owners must assess the risks, such as the level of interaction employees have with customers. If they are asking staff about vaccination status as part of legitimate efforts to assess workplace health and safety, privacy laws have a reasonableness component that would protect employers’ rights to inquire,” she said. “Vaccination is highly encouraged by public health officers. If an employer has to go to court to justify their policies, it’s best to use those same guidelines to show they have an evidence-based approach in bringing in policies.”McLean said there might be circumstances where an employee could argue that it isn’t necessary for them to disclose their vaccination status. “It is fair for an employer to ask in most cases, but I’d say it may vary ... Someone who works at a senior care home is very different from someone who works remotely at home.”Can employers fire unvaccinated staff? Scrimshaw hasn’t heard about business owners putting an ultimatum to employees to get vaccinated or else lose their jobs, but adds that a lot of employment lawyers are waiting to hear any recommendations from the Office of the Privacy Commissioner and looking for guidance from provincial health officers.A spokesperson for the Ontario Ministry of Labour said workers with concerns about vaccination policies in the workplace may raise the issues with their trade union or company health and safety committees. “The Employment Standards Act, 2000 (ESA) does not address mandatory vaccinations. However, if an employer ends the employment of an employee because they refused to be vaccinated, the employee may be entitled to termination pay and severance pay under the ESA,” the spokesperson said. When it comes to whether unvaccinated employees can sue for wrongful termination, McLean said this could happen, but individuals “would have to think about whether to pursue a claim if an employer can demonstrate a vaccine was necessary and proper for the workplace to function.” What are the rights of employees who wish to remain unvaccinated?A worker’s rights might depend on the reason they are unvaccinated, says McLean. “If you have an employee who thinks (vaccination is) a Bill Gates microchip conspiracy, an employer could say that’s not a legitimate reason to refuse a vaccine and your presence in the workplace is putting coworkers and members of the public at risk,” McLean said.But if any staff member has a medical reason why they should not get vaccinated, employers have an obligation to make workplace accommodations. “They would have to assess and possibly modify work duties, such as allowing someone to work from home, or in some workplaces maybe they would continue to wear PPE,” McLean said.When it comes to privacy rights, empl

Can I be fired if I don’t get vaccinated? Experts answer pressing questions about vaccines and the workplace

Canadians are once again navigating a strange new normal.

Vaccines offer protection, but what are the rights of those who choose to not get jabbed?

When Erin Pepler, a Burlington, Ont. resident, recently booked massage therapist and osteopath appointments, vaccination status was on her mind.

“I didn’t really want to flat out ask if they’ve been vaccinated because it felt invasive, but my RMT freely shared this information during an appointment and it definitely made me feel much better about continuing treatment,” she said.

“There are high-risk individuals in my household. If a health-care worker told me they were unvaccinated by choice, I’d definitely question their judgment and consider finding a different practitioner.”

Anticipating that many clients would have similar concerns, Farzana Mayer, owner of iKhaya Day Spa in B.C., put a plan in place.

“In the event that any of our current employees had chosen to not get the vaccine, they would have been placed in a position that does not require direct contact with colleagues or guests. An example of this would be the front-end co-ordinator position behind a Plexiglas,” she said.

Ottawa says it is planning to lessen quarantine requirements for travellers who have had both jabs of any two-dose vaccine, but governments have not yet issued specific guidelines around the use of “vaccine passports” in private sectors of the economy.

Paul McLean, a specialist in employment law at Mathews Dinsdale, says his firm has been receiving many questions from employers about how they can talk with staff and customers about vaccination.

“The limited government advice so far is couched with the caveat that it can all change tomorrow, so it’s quite up in the air,” he said.

To seek some clarity, the Star reached out to employment lawyers, labour boards and the Office of the Privacy Commissioner of Canada. The below are general guidelines only, and should not be treated as legal advice.

Is it legal for employers to ask staff to disclose their vaccination status?

Kirsten Hume Scrimshaw, founding partner of Ally Workplace Law, said employers have to balance privacy concerns and their obligation under health and safety laws to provide a safe space for employees and the public.

“Business owners must assess the risks, such as the level of interaction employees have with customers. If they are asking staff about vaccination status as part of legitimate efforts to assess workplace health and safety, privacy laws have a reasonableness component that would protect employers’ rights to inquire,” she said.

“Vaccination is highly encouraged by public health officers. If an employer has to go to court to justify their policies, it’s best to use those same guidelines to show they have an evidence-based approach in bringing in policies.”

McLean said there might be circumstances where an employee could argue that it isn’t necessary for them to disclose their vaccination status.

“It is fair for an employer to ask in most cases, but I’d say it may vary ... Someone who works at a senior care home is very different from someone who works remotely at home.”

Can employers fire unvaccinated staff?

Scrimshaw hasn’t heard about business owners putting an ultimatum to employees to get vaccinated or else lose their jobs, but adds that a lot of employment lawyers are waiting to hear any recommendations from the Office of the Privacy Commissioner and looking for guidance from provincial health officers.

A spokesperson for the Ontario Ministry of Labour said workers with concerns about vaccination policies in the workplace may raise the issues with their trade union or company health and safety committees.

“The Employment Standards Act, 2000 (ESA) does not address mandatory vaccinations. However, if an employer ends the employment of an employee because they refused to be vaccinated, the employee may be entitled to termination pay and severance pay under the ESA,” the spokesperson said.

When it comes to whether unvaccinated employees can sue for wrongful termination, McLean said this could happen, but individuals “would have to think about whether to pursue a claim if an employer can demonstrate a vaccine was necessary and proper for the workplace to function.”

What are the rights of employees who wish to remain unvaccinated?

A worker’s rights might depend on the reason they are unvaccinated, says McLean.

“If you have an employee who thinks (vaccination is) a Bill Gates microchip conspiracy, an employer could say that’s not a legitimate reason to refuse a vaccine and your presence in the workplace is putting coworkers and members of the public at risk,” McLean said.

But if any staff member has a medical reason why they should not get vaccinated, employers have an obligation to make workplace accommodations.

“They would have to assess and possibly modify work duties, such as allowing someone to work from home, or in some workplaces maybe they would continue to wear PPE,” McLean said.

When it comes to privacy rights, employers should not share employees’ medical information publicly, but this is an emerging grey area, says Scrimshaw, pointing to how some businesses are advertising the vaccination rate of their staff.

It’s unclear whether advertising the general vaccination rate of staff as a group contravenes privacy rights. The Star reached out to multiple provincial ministries across Canada, and none provided clear rules.

A spokesperson for the Privacy Commissioner of Canada, a non-partisan ombudsman and officer of the Parliament of Canada, said the Commissioner did not have any other guidelines to provide at this time. It had issued an earlier statement on the importance of considering privacy rights in vaccine passport development.

Can business owners refuse service to unvaccinated customers?

There are no federal guidelines at this time on private sector practices around the use of proof-of-vaccination documentation, or informally asking customers about vaccination status.

Businesses in the U.S. and Europe have hosted events with different policies for attendees who are vaccinated, and those who are not. In Canada, whether businesses choose to ask customers about vaccination would depend on the nature and even location of the business, said McLean.

“A small eco-resort in a remote community might choose to only accept vaccinated guests because they lack access to medical facilities of COVID-19 testing in their area,” he said.

“A large retail or grocery store, however, would have more options to serve customers. If someone is unvaccinated, they could be offered online shopping or staff members could bring goods outside.”

As for whether customers could complain about unfair treatment, McLean anticipates this would most likely take place on social media rather than play out in courts of law.

Joanna Chiu is a Vancouver-based reporter covering both Canada-China relations and current affairs on the West Coast for the Star. Follow her on Twitter: @joannachiu

Source : Toronto Star More   

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Canada’s culture of silence on airborne virus transmission leaves many confused on how to best avoid infection

It’s the dog days of the pandemic. We continue to follow public health guidance, which is getting less restrictive, as we wait for vaccines to end this crisis. We have learned so much over the last year about how to better protect ourselves, including critical information that COVID is likely transmitted predominantly via airborne spread. And yet, many of our infectious disease and public health specialists — including our chief medical officers of health — seem to be unable to say the word “airborne” or “aerosol” out loud, and instead continue to emphasize measures such as deep cleaning and plexiglass panels. All major medical journals have recently published breakthrough pieces on airborne transmission. The Lancet, BMJ, JAMA, Science, the NEJM, Nature and our own CMAJ adeptly summarize the growing body of evidence supporting airborne transmission and advocate for improved mitigation measures. Both the CDC and the WHO have recently acknowledged the importance of short- and long-range aerosol spread of COVID-19.The droplet/contact paradigm favoured by public health sees sneezes or coughs creating droplets that either travel directly to the nose and mouth, or that land on surfaces touched by fingers that transmit the droplets to your mucous membranes. In contrast to the airborne mode of transmission for COVID-19, the droplet/contact route has seen no similar tsunami of peer-reviewed evidence. Indeed, the CDC has gone so far as to say that contact transmission is extremely rare: “each contact with a contaminated surface has less than a 1 in 10,000 chance of causing an infection.” Canada’s top public health organization, the Public Health Agency of Canada (PHAC), has produced strong, unbiased summaries of the evidence for airborne transmission. There have been three, each one with stronger language supported by the evidence. The March 2021 version is 60 pages long and covers 84 different primary studies, the vast majority supporting airborne transmission.But these summaries are very hard to find. They are not posted publicly, and PHAC has specifically requested that the reviews not be shared. In order to receive a copy, you first have to discover its existence, find the title and email PHAC for a copy. Evidently, our public health leaders have also not seen these documents, as they consistently dismiss the evidence. As such, Canadians remain confused as to the best methods of avoiding transmission. The focus is still on the neverending cleaning of surfaces and putting up splash guards (which are ineffective against airborne particles), instead of using properly fitting masks, moving our interactions outdoors, and improving our indoor air through ventilation upgrades (including easy solutions like opening windows and doors) and air filtration.This is not just an esoteric academic debate. Although cases are dropping, there are still over a thousand new cases per day nationally, now predominantly in children — of whom only those 12 and older can receive vaccinations. In addition, increasingly transmissible variants are beginning to appear. Hospital outbreaks continue across the country. For example, last week saw nine health care workers in Calgary’s Foothills Medical Centre infected with the new Delta variant in a hospital system where better-fitting masks (N95s) were available but discouraged and not used.Responding effectively to a health crisis that impacts all Canadian citizens is not an easy task. Agencies such as PHAC consistently face immense pressure to devise the best plans of action during a rapidly changing emergency. While acknowledging these challenges, it is still crucial to ensure that public health leaders act swiftly when the scientific consensus shifts in an important new direction.Wider transparency on what we now know about the airborne spread of COVID-19 would have a far-reaching impact on keeping people healthy. Talking about it is the first step in ensuring that people, schools and businesses are empowered enough to protect themselves and re-open safely. The understanding of viral aerosolization will be seen as one of the most important scientific advances of the COVID-19 pandemic. But what is the purpose of knowledge if it is not translated into practice?If our public health leaders can accept the science, they can teach the public the fundamentals of COVID-19 transmission, and we can all make the right decisions to prevent more unnecessary illness, long COVID and deaths.Dr. Joe Vipond and Dr. Kashif Pirzada are emergency physicians and two of the co-founders of Masks4Canada. Danielle Cane is a master’s student studying infectious diseases and is a member of Masks4Canada.

Canada’s culture of silence on airborne virus transmission leaves many confused on how to best avoid infection

It’s the dog days of the pandemic. We continue to follow public health guidance, which is getting less restrictive, as we wait for vaccines to end this crisis. We have learned so much over the last year about how to better protect ourselves, including critical information that COVID is likely transmitted predominantly via airborne spread.

And yet, many of our infectious disease and public health specialists — including our chief medical officers of health — seem to be unable to say the word “airborne” or “aerosol” out loud, and instead continue to emphasize measures such as deep cleaning and plexiglass panels.

All major medical journals have recently published breakthrough pieces on airborne transmission. The Lancet, BMJ, JAMA, Science, the NEJM, Nature and our own CMAJ adeptly summarize the growing body of evidence supporting airborne transmission and advocate for improved mitigation measures. Both the CDC and the WHO have recently acknowledged the importance of short- and long-range aerosol spread of COVID-19.

The droplet/contact paradigm favoured by public health sees sneezes or coughs creating droplets that either travel directly to the nose and mouth, or that land on surfaces touched by fingers that transmit the droplets to your mucous membranes. In contrast to the airborne mode of transmission for COVID-19, the droplet/contact route has seen no similar tsunami of peer-reviewed evidence. Indeed, the CDC has gone so far as to say that contact transmission is extremely rare: “each contact with a contaminated surface has less than a 1 in 10,000 chance of causing an infection.”

Canada’s top public health organization, the Public Health Agency of Canada (PHAC), has produced strong, unbiased summaries of the evidence for airborne transmission. There have been three, each one with stronger language supported by the evidence. The March 2021 version is 60 pages long and covers 84 different primary studies, the vast majority supporting airborne transmission.

But these summaries are very hard to find. They are not posted publicly, and PHAC has specifically requested that the reviews not be shared. In order to receive a copy, you first have to discover its existence, find the title and email PHAC for a copy.

Evidently, our public health leaders have also not seen these documents, as they consistently dismiss the evidence. As such, Canadians remain confused as to the best methods of avoiding transmission. The focus is still on the neverending cleaning of surfaces and putting up splash guards (which are ineffective against airborne particles), instead of using properly fitting masks, moving our interactions outdoors, and improving our indoor air through ventilation upgrades (including easy solutions like opening windows and doors) and air filtration.

This is not just an esoteric academic debate. Although cases are dropping, there are still over a thousand new cases per day nationally, now predominantly in children — of whom only those 12 and older can receive vaccinations. In addition, increasingly transmissible variants are beginning to appear. Hospital outbreaks continue across the country. For example, last week saw nine health care workers in Calgary’s Foothills Medical Centre infected with the new Delta variant in a hospital system where better-fitting masks (N95s) were available but discouraged and not used.

Responding effectively to a health crisis that impacts all Canadian citizens is not an easy task. Agencies such as PHAC consistently face immense pressure to devise the best plans of action during a rapidly changing emergency. While acknowledging these challenges, it is still crucial to ensure that public health leaders act swiftly when the scientific consensus shifts in an important new direction.

Wider transparency on what we now know about the airborne spread of COVID-19 would have a far-reaching impact on keeping people healthy. Talking about it is the first step in ensuring that people, schools and businesses are empowered enough to protect themselves and re-open safely.

The understanding of viral aerosolization will be seen as one of the most important scientific advances of the COVID-19 pandemic. But what is the purpose of knowledge if it is not translated into practice?

If our public health leaders can accept the science, they can teach the public the fundamentals of COVID-19 transmission, and we can all make the right decisions to prevent more unnecessary illness, long COVID and deaths.

Dr. Joe Vipond and Dr. Kashif Pirzada are emergency physicians and two of the co-founders of Masks4Canada. Danielle Cane is a master’s student studying infectious diseases and is a member of Masks4Canada.

Source : Toronto Star More   

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