Mandatory Vaccines for Regulated Health Care Practitioners

Updated: March 21, 2022

The BC Government has revised its plan to mandate vaccines for all regulated health care professionals.  On March 10, 2022, the BC Public Health Officer announced that they will be moving forward with an “informed consent” system for some health care workers which may require disclosure of vaccination status to patients or clients. The new Order was issued on March 7, 2022 and requires regulated colleges to record each registrant’s vaccination status by March 31, 2022.    Vaccination will still be required for health care workers practicing in certain settings. 

 

The landscape of employment law continues to change as BC brings in new measures to manage the ongoing COVID-19 pandemic.  This time, the change affects employees and employers working in regulated health care professions.  

On February 9, 2022, the BC Public Health Officer expanded its vaccine mandate to include health care workers like dentists, chiropractors and other practitioners who are governed by a regulatory college.   According to the new announcement, workers who get a first dose of the vaccine by March 24, 2022, and a second dose between 28 and 35 days after, may continue to work.  

The BC Provincial Health Officer is finalizing the order in consultation with the health professional colleges and further details will be provided about how the vaccine mandate will be rolled out.  As we’ve seen with other government mandates, workers who fail to get vaccinated by the imposed deadline may be terminated or placed on unpaid leave. 

We have worked with many dentists and other regulated health care professionals to navigate the twists and turns of the COVID-19 pandemic, and this will be another challenge for employers to tackle.  That is because government vaccine mandates do not eliminate all risk associated with terminating a worker who refuses a vaccine.  There are a number of aspects to mandatory vaccines that must be handled carefully, including medical exemptions and the privacy of workers’ personal information.   We may see health professional colleges taking a lead role in collecting information about vaccination status and investigating instances of non-compliance, however this does not replace an employer’s legal obligations.  Here are the top three things that those working in a regulated health care profession should know:

 

1. The employer has a duty to accommodate in some circumstances.

In rolling out vaccine mandates, even if they are government ordered, employers still need to consider their responsibilities to workers under the Human Rights Code.  Employers have a duty to accommodate workers who can demonstrate that they are unable to be vaccinated for reasons protected by the Human Rights Code (for example, disability or religion) to the point of undue hardship. In deciding whether it is undue hardship to continue employment of an unvaccinated worker, employers must consider the personal circumstances of the worker, and take into account the safety of the workplace and the requirements of both the government and their regulatory body. 

 

2. An employee’s vaccine status is sensitive health information.

As healthcare practitioners know, personal health information must be handled with care.  This includes vaccine status. The Personal Information Protection Act allows private sector organizations to collect, use, and disclose an employee’s personal information for limited purposes, if appropriate safeguards are in place. This means that employers must have a designated process for protecting the privacy of information about vaccine status which also complies with the requirements of their respective regulatory colleges.  These privacy obligations extend to prospective employees who are applying for a job and are asked to disclose their vaccination status. 

 

3. Mandatory vaccine policies should be drafted carefully.

Employers in a government-mandated industry should have a written vaccine policy that complies with all BC public health orders and is applied consistently.   This policy should address what will happen when a worker has a qualifying exemption and is unable to be vaccinated.  There should also be a clear process for how to collect, use and protect each employee’s private information.

A full list of health care professions affected by the order can be found here

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

New – BC employers must provide employees 5 days of paid sick leave

The BC Government has announced that starting January 1, 2022, all businesses with employees falling under the Employment Standards Act will be required to give their employees up to 5 days of paid sick leave each year. Paid sick leave is a significant change in the minimum employment standards in BC.  We tackle some frequently asked questions below:

Q:        When does this rule come into effect?

A:         January 1, 2022

Q:        Are all businesses impacted?

A:           All businesses with employees falling under the BC Employment Standards Act are required to follow this rule.

There are some exceptions which could include:

  • unionized workplaces (which would have their own collective agreements);
  • independent contractors (who would have their own contracts);
  • certain professionals such as engineers, accountants, or lawyers (read more); and
  • federally-regulated businesses, for example those whose businesses are in the air transportation, banks or telecommunications industries (see list).
Q:        Which employees are covered?

A:            All employees falling under the Employment Standards Act, including full-time, part-time and casual workers.

Q:           Are there any conditions these employees need to meet before they become eligible for the paid sick leave?

A:         The employees need to have been employed for at least 90 calendar days. There is no requirement that they have worked a certain number of hours or days.

Q:           Does the 5 days of paid sick include the 3 unpaid days of sick leave that was recently added to the Employment Standards Act as a pandemic response?

A:            No, the 5 paid days are in addition to the 3 unpaid days, meaning that starting January 1, 2022, an employee could be at minimum entitled to 8 days off if they are sick, 5 paid and 3 unpaid.

Q:           Is a doctor’s note required?

A:         Employers are allowed to ask for “reasonably sufficient proof” and the employee must, as soon as practicable, provide such documentation to their employer.  No further details have been provided about what “reasonably sufficient proof” might be.

Stay tuned! We expect there will be more guidance from the Government of British Columbia coming out in the following weeks and we will updating this post.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Time to Work at Home (again) – Do you have a Policy for that?

Time to Work at Home (again) – Do you have a Policy for that?

With rising Covid numbers, many workers who had returned to the office are now turning around to head back to working from home. The November 7th B.C. Provincial Health Order states that employers should “encourage” their workers to work from home, if feasible. The purpose of the Order is to reduce the risk of transmission of Covid-19 in workplaces, but it is important to remember that employers are still responsible for ensuring their employee’s safety while working remotely.

WorkSafe BC Requirements

WorkSafe BC requires all employers to have a working from home health and safety policy in place, and provides guidelines for how to work from home safely. A Work from Home policy should include the following:

  • Employees should assess their workspaces and report any potential hazards to their manager
  • An evacuation plan for the worker’s home and how to contact them in case of an emergency
  • Safe work practices and how to report any work-related injuries
  • Communication plans for checking in on workers working alone or in insolation
  • Ergonomic considerations

Other Considerations

Beyond safety considerations, there are other issues that need to be addressed for remote workers. Will their hours of work be the same or different?  What protections are in place for company property and electronic information? What equipment and supplies will be provided by the company? How will employees stay connected with other employees in the workplace?

Does your company have a Work from Home policy? Whether you are an employer or a worker, if working from home is in the mix, you should know the answer to this question. While we all hope the restrictions in the Order will not continue after November 23rd, it is now clear that we need to be ready for ongoing remote work.  If your company does not have a policy and safety measures in place for remote work, you can reach out to WorkSafe BC or speak to an HR professional or employment lawyer for help.

This blog is not intended to serve as legal advice, and only provides general information.

Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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Sexual Harassment – BC law is clear even if the news is not

Human Rights Basics Series

I have advised many clients about sexual harassment issues since I began practicing law in 2004. It never ceases to amaze me the things that people think it is OK to say and do at work. The news stories and debate about sexual harassment during the Trump campaign confirmed to me that there is still a need for education and information on the important issue of sexual harassment. In BC, the law is actually pretty clear when it comes to workplace sexual harassment.

Workplace Sexual Harassment is Against the Law

Now, that has got to be one of the most simple and straightforward statements that a lawyer has ever made. In British Columbia, one of our provincial laws is the BC Human Rights Code. Section 13 of the Human Rights Code states that discrimination at work based on sex (among other things) is not allowed. This makes sexual harassment at work against the law.

Elements of Workplace Sexual Harassment

The basic elements of the legal definition of workplace sexual harassment in BC are also not under debate. The elements were established by the Supreme Court of Canada in 1989 in a case called Janzen v. Platy Enterprises Ltd., [1989] 1 SCR 1252, as follows:

Sexual harassment in the workplace is unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job‑related consequences for the victims of the harassment.

Unwelcome Conduct

For conduct to be sexual harassment, it must be unwelcome. I often get the question, if coworkers are involved in a romantic or sexual relationship, is this sexual harassment? The Human Rights Code does not prohibit consensual relationships at work, as they are welcomed by both participants.

Conduct of a Sexual Nature

Sexual harassment takes place in many forms and can include everything from comments, emails, texts or sexual jokes to sexual propositions, persistent romantic pursuit, sexual touching or assaults.

Negative Impact on Work or Work Environment

Workplace sexual harassment has a negative impact on the victim. The negative impact can take many forms, from embarrassment and humiliation, to termination of employment, or differential treatment at work.

What to do about Workplace Sexual Harassment

Every workplace should have a harassment policy. If you are an employee dealing with sexual harassment, the first thing to do is look at your employer's harassment policy, which should set out a process for dealing with harassment and making a complaint. You may also want to consult with your union or an employment lawyer (like me) for advice.

If you are an employer, and you don't have a policy dealing with sexual harassment, you should speak to an employment lawyer (like me) about putting one in place. A policy including an internal harassment complaint process gives employers the chance to address these issues quickly and internally, rather than employees having to resort to complaints to the BC Human Rights Tribunal.

Tags: Workplace BC, BC sexual harassment law, Human rights bc workplace, BC work laws, Sexual harassment workplace, Sexual harassment laws BC

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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