Jack Knox: With workplace vaccines, we tiptoe where the U.S. dives in

Down in the U.S., the message is becoming clear: Employers have the right to require COVID vaccines in the workplace.

It comes from the top. Last week, the U.S. Justice Department released a legal opinion saying the law does not prohibit employers from mandating vaccination as a condition of employment. Then, on Thursday, Joe Biden said millions of federal workers and contractors will have to either show proof of vaccination or submit to weekly COVID tests. “If in fact you are unvaccinated, you present a problem to yourself, to your family and those with whom you work,” he said.

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California announced last Monday that all state and health-care workers must provide proof of vaccination or submit to regular testing. That led others, including the cities of Los Angeles and San Francisco, to demand the same of their employees. Big companies such as Google, Facebook and Netflix joined in, saying they won’t allow workers in their U.S. worksites unless they have been fully vaccinated. More than 400 U.S. universities have announced they won’t permit unvaccinated students, faculty and staff on campus this fall.

Meanwhile, in Canada, the message from on high is … silence. Or, at least, it’s equivocal, leaving employers wondering what they’re supposed to do. They’re being left on their own to weigh the rights of the unvaccinated against those who could be infected.

At the Greater Victoria Chamber of Commerce, CEO Bruce Williams hears about the uncertainty from members.

“What are the guidelines? What are we supposed to do?” they ask.

“Check with your HR department,” he tells them.

“I am my HR department,” they reply.

Marcia McNeil, who practises labour and employment law in Victoria, sympathizes. “Lots of my clients are struggling with these issues,” she says.

In the absence of firm direction from on high, employers frequently find themselves trying to negotiate three sometimes-competing principles of law, as represented by three different agencies. The human rights commission wants to protect those who go unvaccinated due to medical conditions or religious beliefs. B.C.’s privacy commissioner is leery about employers asking workers to divulge their vaccine status — but Worksafe B.C. requires those same employers to provide a safe environment, which can be interpreted as meaning protection against the unvaccinated.

Looking for yes-or-no answers within their policy statements can be frustrating.

“All three of those agencies have said things that aren’t definitive,” McNeil says. They might say there are circumstances under which vaccine-reporting requirements are warranted, but will then add a confusion of conditions. A host of factors must be factored in: the vulnerability of clients and colleagues, the ability to socially distance or otherwise mitigate risk, the prevalence of COVID at a given time and place, whether there are alternatives to working alongside co-workers. …

“Every workplace is different, so individual employers should seek legal advice when developing a mandatory vaccination policy, as they need to address not only workplace health and safety and employees’ interests but also consider labour and employment issues,” says the Worksafe B.C. website. Not what those seeking clearcut direction were hoping for.

In the end, people are left to work it out on their own and hope they don’t get in trouble for leaning one way or the other, knowing that ultimately this will have to get tested in court.

The idea of mandatory vaccines (or vaccine passports) is, obviously, contentious, with much of the push coming not from workers who are worried about being infected by colleagues, but from people who feel the war against COVID is being undermined by those who refuse to join the fight. It becomes not just about protection, but punishment.

Authorities here have been wary of imposing a coercive, broad-brush approach, though. They have tended to wade carefully, not dive, into this lake. Two weeks ago, when visiting restrictions at care homes eased, B.C. brought in a requirement for staff who are not fully vaccinated to wear masks and undergo regular testing. That still falls well short of the mandatory vaccines many want to see across the health sector, though we may be inching in that direction. To whom should such a policy apply, if not the people whose very jobs are to work with the most vulnerable?

Government does occasionally step in. Two years ago, in the middle of a measles scare, B.C. brought in a mandatory vaccine registry requirement for K-12 students. The idea was that unvaccinated kids could be barred from school in case of an outbreak. It’s uncertain whether COVID-vaccine records will be added to the registry this fall, but why wouldn’t they be? If it’s logical in the case of measles, then it’s logical for COVID, too, now that those over age 12 are eligible for their shots.

But that doesn’t help employers figure out what to do.

jknox@timescolonist.com

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