b'LEGAL COLUMNCOVID-19 VACCINATION IN THE CONSTRUCTION WORKPLACE BY KEITH BURKHARDTBY ELMER HAAN, W ith COVID-19 vaccination within reach for mostPRIVACY Canadians, many construction employers want toAn employer that operates in a province or industry with privacy PRESIDENT OF THE SIAC WESTERN CANADA CHAPTER know if they can require workers to be vaccinatedlegislation applicable to employee personal information must ensure once vaccines are readily available. Employers are also uncertaincollection of vaccination information is done in compliance with that about the information they can collect about vaccinationlegislation. A vaccination policy should clearly outline why collection and whether widespread vaccination in the workplace meansof vaccination information is reasonably necessary, the scope of its fewer health and safety protocols such as distancing, masking,use and disclosure, and how it will be stored and destroyed. disinfecting, etc.For assistance related to COVID-19 in the workplace, contact yourNON-UNIONIZED EMPLOYEESSherrard Kuzz LLP lawyer or, if you are not yet a client, contact us atSubject to the human rights and privacy considerations set out info@sherrardkuzz.com with the subject line: COVID-19. above, an employer can implement a mandatory vaccination policy for its non-unionized employees.CAN A CONSTRUCTION EMPLOYER, GENERALFor a new worker, a vaccination requirement should be clearly set CONTRACTOR OR SITE OWNER MANDATE COVID-19out in the offer of employment. VACCINATION AS A CONDITION OF EMPLOYMENT OR ACCESS TO A JOBSITE? For an existing worker, depending on the nature of the workplace In most cases, an employer, general contractor or site owner canand the employers justification to require mandatory vaccination, require COVID-19 vaccination as a condition of employment or accessrefusal to be vaccinated may or may not amount to just cause to a jobsite, subject to the considerations and risks addressed below. to terminate the employee. If not, the employee may be entitled to pay in lieu of notice and in some cases severance pay (under HUMAN RIGHTSemployment standards legislation). Common law notice may also A worker unable to receive the COVID-19 vaccine due to abe owed, depending on the terms and conditions of employment.health condition or religious belief may claim any requirementAccordingly, before implementing a mandatory vaccination policy, to be vaccinated is discriminatory in employment under humanan employer should consider how it will respond and the associated rights law. In that case, an employer must be able to demonstratecostfinancial and otherwiseif a worker refuses to be vaccinated vaccination is a bona fide occupational requirement andon the basis of personal choice.accommodate the employee to the point of undue hardship. In some circumstances, an employer may try to reduce potential Each request for accommodation must be assessed on an individualliability by implementing a vaccination policy that provides non-basis, and possible accommodations might include: disciplinary alternatives if an employee elects not to be vaccinated.exempting the worker from the requirement to be vaccinated;This could include: placing a worker on an unpaid leave of absence, requiring the continued use of PPE even after it is no longer moving the worker to a position or location on the jobsite thatrequired by law, or another measure to reduce potential COVID-19 does not require direct and/or regular contact with co-workers,transmission in the workplace. However, depending on the nature customers, clients, vulnerable individuals or the public; andof the alternatives provided, a worker may argue the requirements of the policy constitute a constructive dismissal. Whether thisr equiring the continued use of personal protective equipmentis accurate will depend on the specific facts of each case. To (PPE) to mitigate the risk of transmission, even if no longerminimize the risk to your organization, consult with experienced required by law. employment counsel before taking steps. 10THE OFFICIAL PUBLICATION OF THE SCAFFOLD INDUSTRY ASSOCIATION OF CANADA'