Vaccination Policies at MakeWay
Why is MakeWay not requiring vaccines for all staff?
At present, it is not clear at law whether and when an employer might be entitled to insist on mandatory vaccination. The issue is a workplace by workplace analysis.MakeWay will continue to monitor the situation and provide updates as things become clearer.
What parts of the law are not clear on this subject?
Asking for vaccination information, or requiring vaccination as a condition of employment, raises safety, human rights and, in BC, privacy issues.
The legal considerations against mandatory vaccination are that under privacy law, the use and collection of this information needs to be reasonable and under human rights law, you are not permitted to discriminate on the basis of a disability or religion.
As a clarification, those who voluntarily chose not to vaccinate are not protected under human rights laws.
Is there a case where we could require mandatory vaccines?
Yes. For human rights purposes, you need to demonstrate that mandatory vaccination offers materially greater protection than other less invasive steps and that you should ensure that those who are unable to vaccinate for medical or religious reasons are given reasonable accommodation.
Unfortunately, there are no court, tribunal or arbitration decisions as of yet on whether the safety considerations justifying asking for and using this information are justified and outweigh the human rights and privacy considerations. Despite this, it is our view that mandatory vaccination can be justified where you can demonstrate that it provides a material improvement is safety for your employees, and where the workplace is such that employees could be exposed to the virus, the vaccine provides that material improvement in workplace safety.
In our operations, where you have vulnerable individuals who may be more susceptible to the severe consequences of COVID-19, there may be a more compelling argument for mandatory vaccination.
If we implement a project level vaccine requirement, what do we need to consider?
Any policy should consider how to accommodate employees who are unable to vaccinate due to a medical issue or on religious grounds. These exemptions are likely to be a small number and we suggest that the policy stipulate that these situations will be dealt with on a case by case basis. You will need to consider any reasonable accommodation for these individuals. This might include working from home, or testing, isolation, or other steps.
You may also want to consider whether or not you are requiring vaccines from your clients or partners. If you are not requiring vaccines from other people regularly in your space, you may be opening yourself up to a challenge from an employee.