This article is sponsored by Emond Harnden LLP.
As the recent Omicron wave slows down, public health officials are easing pandemic restrictions – in some cases, dropping vaccine passports and in-door mask use.
Meanwhile, many employers have been setting mandatory vaccine policies to help control the spread of COVID-19 — policies that, in some cases, were opposed by some employees and unions.
Arbitrator rulings are now coming fast and furious.
What will these decisions mean for employment policies? How must employers react? And if COVID-19 policies need updating, what key changes must be made? Finding the right answers doesn’t have to be complicated. Emond Harnden LLP, one of Ottawa’s leading labour and employment law firms, is here to guide employers through these critical updates.
This is an edited transcript of a discussion between Neil Dzuba and Patrick Twagirayezu of Emond Harnden LLP and OBJ publisher Michael Curran. To hear the full interview, please watch the video above. Prefer an audio version of this podcast? Listen to it on SoundCloud or Spotify.
MC: Are decisions we are seeing coming out of arbitrations with unions applicable to private sector employers who are trying to navigate the changes COVID rules?
ND: They do provide some instructions for employers, but there are some differences to be noted. But, the employment context can apply some very similar issues, such as is my policy proper, is it too far reaching, why do you need this policy etc. There is a lot of guidance to be had from the arbitration community when looking at the science, human rights, privacy in how to deal with COVID-19 rules and regulations. It's the best yardstick we have the moment.
PT: There is also something to be said about comparing similar sectors to try and find some guidance from unionized cases to build a foundation for your business. These types of cases are used as persuasion and not precedent, so it's really a starting point for businesses.
MC: Can businesses still implement a mask mandate for employees if the province or OPH says it's no longer needed?
PT: As we've mentioned, what's required by the government and what an employer has to do are intertwined to some degree but they are also completely separate. The key factor here is the Occupational Health and Safety Act. It may come down to how other employees feel about having colleagues who aren't wearing masks or aren't vaccinated. The short answer is employers can do whatever they feel is necessary to maintain the health and safety of the workplace but we will always be asking the question of if it's reasonable and defendable.
ND: The OHSA will be be a very important piece of legislation going forward because that is the employers obligation to keep employees safe. If your assessment finds that masking is still important, or vaccines are necessary despite the local health organization saying otherwise and you have justifiable evidence for that decision then that will be easier for an employer to uphold.