As more Canadian workers become eligible for COVID-19 vaccines and some employers make plans for a gradual return to workplaces, it’s more important than ever to know your rights when it comes to mandatory vaccinations and COVID-19 testing.
Since every province and territory has their own public health recommendations, there’s no one-size-fits-all approach, but you have basic rights under your collective agreement and human rights legislation that your employer must respect.
We’ve pulled together some important questions about your rights as an employee around COVID-19 screening and vaccinations.
- What should I do if I’ve contracted COVID-19 while at work?
To make sure you’re protected in case you suffer long-term effects from COVID-19, we recommend you file a claim with the Workers’ Compensation Board in your region if you contract COVID-19, even if you’re asymptomatic. You should also file an incident report at work. This is especially important if you’re an essential or critical worker.
The Board will adjudicate each case on the merits of the claims to determine if your exposure or contraction of COVID-19 occurred either in the normal course of employment, or if it was caused by an employment hazard. Documenting your case will help support your claims, and a COVID-19 test may be an essential part of establishing the link between the execution of employment terms and your subsequent injury (contracting COVID-19) so be sure to keep your test results.
- Can my employer require me to take a COVID-19 test?
You have a right to medical privacy, but that has to be balanced against provincial and federal laws requiring a safe workplace. This is very much an unprecedented situation, and a lot of the case law that will inform this debate has yet to be litigated fully.
Due to the highly infectious nature of COVID-19, especially with new variants emerging, it is possible that an employee working on-site, in close contact with others – particularly if the workplace involves vulnerable populations – could be required to take COVID-19 tests. However, we advise you to first verify the testing protocols in your local region.
In many provinces, for instance, it is currently very difficult to get a test unless you meet specific requirements. Reach out to your shop steward, component union or PSAC regional office if you believe your employer doesn’t have grounds to require you to be tested or you feel you’re being discriminated against.
- What if I refuse to take a COVID-19 test?
An employer may refuse to allow you on the work premises if they have reasonable grounds to believe you may have been exposed to, or are infectious with, COVID-19.
- If the workplace is an essential workplace with close contact with other people, such as a correctional facility, a meat-packing plant or a medical facility, the employer would likely have more grounds for disciplining a member who refused to get tested.
- Employers should, however, look to less restrictive measures where possible, including asking employees to work from home or take leave if they refuse to be tested. But keep in mind employers do not have a legal obligation to accommodate employees in this manner.
- It’s important to reach out to your shop steward, component union or PSAC regional office if you believe your employer doesn’t have grounds to require you to be tested or you feel you’re being discriminated against.
- Am I required to disclose the results of a COVID-19 test? Can my employer ask me for the written results?
Your medical privacy is very important. Employees generally do not have to provide medical information to their employer, and employers must take care to minimize the amount of information requested from employees.
Generally, you would not have to show the employer a copy of your test results without a special health order in place. But if you test positive and have been in the workplace in the past 14 days, you will have to inform your employer.
Regardless, your employer must take steps to protect your privacy. This means they should not reveal names, medical information, or personal details. According to guidelines provided by the federal government, it’s generally sufficient for the employer to state that an unnamed person was in the workplace and is either infected, exhibited symptoms, or was exposed to the virus. If the workplace is very small, such that this information would identify the employee, the employer could make a broader announcement (e.g. generalizing what unit the employee worked in).
Health units have not expanded the requirement that an employee show a negative test, a doctor’s note, or clearance letter in order to return to work. It is also difficult in most jurisdictions to get a test to prove an affected person has recovered from COVID-19 due to testing guidelines. Exceptions could be made for workplaces that involve vulnerable populations. As many of these situations are context specific, it’s important to contact your shop steward, component union or PSAC regional office relating to your issue.
- Can my employer make the COVID-19 vaccine mandatory?
No one can be forced to get a vaccine in Canada. The Canadian government, and many of the provinces, have stated that the vaccine will not be mandatory. British Columbia, for instance, has stated that the vaccine will be available to “everyone in the province who the vaccine is recommended for and who would like to be vaccinated.”
As of right now, the vaccine rollout is quite limited. It would be very difficult for most employers, at this point, to require vaccinations in order to return to the workplace due to the lack of availability of vaccines.
As the vaccine rollout becomes more widespread, employers may require employees to get the vaccine to return to certain work sites. In addition, there is a possibility that health officers could require mandatory vaccinations for specific workplaces, such as health facilities, correctional facilities or other workplaces that involve regular contact with vulnerable populations. Workplaces would have to comply with whatever health orders are issued, but there would still be room for exemptions.
Workplaces are subject to provincial and federal workplace safety requirements. Due to the exceptionally contagious nature of COVID-19, particularly with the emergence of potentially more contagious strains, it remains to be seen what safety requirements will be implemented as workers return to work sites.
- Can my employer fire me for refusing to take the vaccine?
It is very unlikely, especially in the early stages of the vaccine rollout, that an employer could fire an employee for refusing to take a vaccine. It is possible, however, that employers may be able to require an employee to work off-site until the pandemic is over.
If you work in an essential or critical workplace where working from home is impossible, it may be more difficult to argue that an unvaccinated employee can return to the workplace. It’s also important to consider if there are reasonable alternatives available, such as the option to wear personal protective equipment instead.
- If you are terminated due to refusal to get a vaccine, it could be a human rights violation, especially for members unable to get vaccinated because of health reasons.
- If you cannot take the vaccine due to health or religious reasons, you should ask for accommodations. This would trigger the duty to accommodate.
- I have health concerns that mean I cannot get the COVID-19 vaccine. What should I do?
If you have a valid health concern, you are exempt from getting a vaccine. Provincial and federal human rights legislation prevent discrimination on the basis of disability. There are specific provisions in your collective agreement preventing discrimination. Talk to your shop steward or reach out to your component union or PSAC regional office for more information about your rights under your collective agreement.
If vaccinations are generally required in the workplace, the employer will have to engage in discussions with you and the union about possible accommodations, including potentially requiring you to wear PPE, to telework, etc.
- I work in in a building owned by a third-party company. If the building owner puts restrictions in place – like mandating workers to be vaccinated before entering – can they enforce this on our workplaces?
Without a public health order by a provincial health or local public health authority, it is unlikely that a building’s landlord would be able to enforce restrictions such as mandatory vaccinations.
It's important to keep in touch with your PSAC regional representative or shop steward to let them know about any policies from the employer on this issue so that we can address them.
- With stricter public health orders in some jurisdictions, will Treasury Board continue their current 699 policy requiring members to use their own leave and only get 699 after all other options have been exhausted?
Treasury Board has given no indication they plan to rescind their regressive and discriminatory changes to the 699 leave policy. As of November 9, 2020, Treasury Board updated its guidance regarding the use of Other paid leave (699 leave). Based on this, 699 leave is being considered:
- on a case-by-case basis;
- after all options have been explored for remote work, flexible work hours or alternate work; and
- other relevant paid leave, available through collective agreements or terms and conditions of employment, such as vacation or sick leave has been used (where appropriate).
It may be helpful to determine if your employer has issued any additional updates or guidance on how it processes 699 leave in your workplace.
PSAC has filed several policy grievances with Treasury Board, CFIA, and other agencies for restricting the use of 699 leave for its members during the COVID-19 pandemic. Forcing federal public service workers to exhaust all their paid leave before being able to access 699 leave is discriminatory as it disproportionately impacts marginalized groups who have been hit the hardest by the pandemic. This includes women, racialized employees, workers with disabilities, and public service workers with family obligations.
PSAC is committed to ensuring that all our members, and especially women, caregivers, racialized workers and workers with disabilities, continue to have the necessary support and leave with pay they need during the pandemic.
- What if I have a second job, for example as a grocery store clerk; can my employer demand that I quit my second job?
It’s unlikely that an employer could require you to quit a second job. Generally, what an employee does outside of their work hours is not of legitimate concern to the employer – this includes an employee’s right to hold a second job or a side business. However, employees who hold another job or side business must respect the rules against conflicts of interest and any language in the collective agreement limiting the type of outside work they perform. A member’s outside work only becomes a relevant consideration to the employer if it has an adverse effect on the employee's ability to perform their duties. For instance, where the other employment repeatedly causes you to be late or to be absent from work, the employer may impose some disciplinary measures.
During the pandemic, employers may be more concerned about their health and safety obligations. As a rule, they must take all reasonable precautions for the safety of their employees. In doing so, they have the right to make and enforce reasonable health and safety rules and to discipline employees for misconduct if they fail to obey them. However, in the absence of evidence that the employee’s outside work causes health and safety concerns, it would be unreasonable for an employer to interfere.