ExpiredMMAA Fall Webinar Presentation – COVID Vaccination Policy and the Workplace: What Municipal Governments Need to Know">
  • October 7, 2021
    10:00 am - 11:00 am

MMAA / TDS Fall webinar post-event information

Thank you for attending the MMAA / TDS fall webinar on October 7, 2021.

Below you find some resources, information on pricing and fees, as well as a list of 20 FAQs created by the municipal law team after the event.  

Presenter Contact Information

Jennifer Hanson  |  (204) 934-2579  |  jsh@tdslaw.com
Scott Hoeppner  |  (204) 822-4336  |  sjh@tdslaw.com
Laura Minuk  |  (204) 934-2411  |  lrm@tdslaw.com

TDS Municipal Law Resources

Municipal Law webpage with team information and related articles

Subscribe to TDS newsletters to receive invitations to future events and other information

Pricing

TDS understands that clients care about cost certainty and budget predictability. That is why we have moved to using more alternative fee arrangements (AFAs) where it is practical to do so. Some examples of AFAs include:

– Fixed fees (e.g. employment agreements, independent contractor agreements, website privacy policies and terms of use, etc.)
– Fee ranges and capped fees (e.g. employee handbooks)
– Annual retainers for general advice. In this case, if the client isn’t scared that the “meter is running”, they are more likely to pick up the phone and call their lawyer. Getting the right legal advice early can help avoid costly issues down the road.

Since each client is unique and every matter is different, TDS lawyers work with each client to develop a customized fee arrangement that both parties agree to.

Questions & Answers from October 7th, 2021 Presentation

** This content is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor client relationship. **

1. Who will pay for the testing?

This will be a decision of Council or administration and should form part of the Municipality’s Covid Vaccination Policy. 

If an employee has demonstrated that they cannot obtain a Covid vaccination based on medical/religious exemptions, it is recommended that the Employer accommodate that employee, which may include paying for their testing.

2. What about ‘volunteer’ firefighters?

This will be a decision of Council or administration and should form part of the Municipality’s Covid Vaccination Policy. 

3. If a policy has not been implemented. How do we handle the political issue that mandates proof of vaccine to enter a municipal facility when staff do not need to be and may not be vaccinated?

The current Manitoba Public Health Orders require operators of a business or facility to be vaccinated.  Order 27 of the October 4, 2021, Public Health Order reads:

ORDER 27

27 If these Orders require the operator of a business or facility to prevent members of the public who are not fully vaccinated from attending the business or facility, a person who is not fully vaccinated and who is not otherwise permitted to enter that business or facility under these Orders must not enter or attempt to enter that business or facility.

So, from a political perspective, the operator may rely on the above order to explain that they are required to mandate proof of vaccination for members of the public and that, whether it is fair or not, they are ultimately left with no choice.

4. If we go the testing is there guidelines to dispose the bio hazard of the testing material.

Yes, we would recommend that you contact your regional health authority to assist with proper bio-hazard disposal questions and concerns.  

5. We have City employees working at RCMP building, with newest announcements, they will not be able to work there anymore, and no work at home is going to be offered. Will they be able to bump others (unionized)?

This will need to be analyzed on a case-by-case basis, as each Municipality has their own Collective Agreement.

6. Can we introduce specific precautionary measures that would apply to staff that are not vaccinated (i.e. Requiring staff who are not vaccinated to wear a mask throughout the day, even when seated at their desk and only require staff who are fully vaccinated to be able to remove masks when at their desk)?

We recommend seeking legal advice to discuss specific measures you would want to implement as it may be a reasonable requirement in some workplaces, but not reasonable in other contexts.

7. Can we have specific rules related to time off and sick time for individuals who are not fully vaccinated? (We have allowed staff to go beyond their sick time allotment when it comes to having time off due to being quarantined or due to exposure outside of the workplace and we have made arrangements for staff who can work from home during quarantine period to do so).

Time off and sick time should be provided to all staff based on their employment contract and/or Collective Agreement and any legislated leaves of absence. Accommodation requirements should be based on a case-by-case basis.

We recommend seeking legal advice to discuss specific measures you would want to implement.

8. Policies take time to right and implement. What can/should an employer do to protect staff during this time.

We would recommend ensuring that the Manitoba Public Health Orders are being followed by the Municipality, as well as all Workplace Health and Safety, Human Rights and Privacy requirements, which may require additional safety measures depending on your workplace.

We would recommend that, if you intend on implementing a policy, you commence working on a Covid Vaccine Policy as soon as possible.

9. It’s not clear to me. Can we impose on our staff that must notify us of their vaccination status?

It depends.  If the Municipality has a Covid Vaccine Policy, the terms of notifying the Employer of their vaccination status should be provided in the policy. If no policy exists, it may not be considered permissible to ask for this information. As vaccination status constitutes personal health information, the collection of this information must be connected to a broader objective, such as the implementation of a Covid Vaccine Policy.  Thus, there may be occasions where seeking information regarding vaccination status, even where no vaccination policy is in place, may be reasonably necessary.  However, a municipality should also ensure that it’s prepared to deal with such sensitive information in accordance with applicable privacy legislation.

10. What if vaccinated staff do not want to work with unvaccinated staff? – I had a technical issue with my computer and missed the answer/discussion to this question. Will this information be available somewhere after the Zoom meeting is over, or could someone please fill me in on this question? TIA!

If the Employer has a Covid Vaccination Policy detailing the vaccination requirements (vaccinated and/or testing, etc.) then all staff would be assured that all proper Workplace Health and Safety, Human Rights and Privacy considerations have been followed by the Employer.  Each Employer will have different requirements based on the form of Covid Vaccination Policy they chose to administer. Otherwise, this answer will depend on various factors, including the context of the work environment, the health status of the employees refusing to work with other unvaccinated employees, the number of unvaccinated employees, and so forth.

11. Are employers able to ask vaccination status in job interviews?

An employer may ask for vaccination status of a prospective employee if they have been offered a position that requires full vaccination status, and the Covid Vaccination Policy permits them to do so. If a policy exists, then the employer may apply the policy to the prospective employee and require them to abide by the terms of the policy as a condition of employment.  However, if inquiring into vaccination status, employers should also inquire as to whether accommodation may be required.

12. Currently the public health act requires anyone entering the arena must be vaccinated what do we do if staff are not vaccinated that work there?

If a Public Health Order requires that a particular business or facility can only permit entry to fully vaccinated members of the public, then that business should ensure that they adhere to these requirements. To that end, if these orders are silent with respect to vaccination requirements for its employees, it may be appropriate to create a separate vaccination policy to further reduce the risk of contracting COVID-19.

13. What criteria or reference can be used when assessing a religious exemption?

When assessing a religious ground, it would be appropriate to ask for documentation from a pastor, clergy or religious leader to support that this is a sincerely held religious belief by this person, and it is tied to the beliefs of the religion in general. Only those beliefs that are sincerely held and not based on personal preferences or beliefs may attract accommodation under Manitoba’s Human Rights Code. We recommend speaking with us directly if an employee requests a religious exemption from the Municipality.

14. To clarify your statement of ‘there is a risk to municipalities’, If an RM does not have a vaccination policy and an unvaccinated employee infects another employee or member of the public who either ends up with long covid or dies, is there a liability risk to that RM?

Employers should always work towards a respectful and safe workplace for all staff, Council and the public.  To minimize risk and liability, it is best practice to:

– ensure that the Municipality follows all Manitoba Public Health Orders
– ensure that the Municipality follows all Workplace Health and Safety, Human Rights and Privacy laws, regulations and considerations
– create and enforce a Covid Vaccination Policy, where appropriate.

15. When I look at the numbers, people who are double vaccinated, still contract Covid 19, and are still filling intensive care wards. Should we have more proof that a double vaxed person bring less of a chance of spreading covid 19 to the work place and safer than an unvaccinated person?

It is recommended that all Employers adhere to the Manitoba Public Health Orders that are consistently changing based on scientific and medical advice. However, imposing stricter rules than recommended by Public Health Orders will depend on the nature of the workplace, and the basis for doing so.

16. Am I right in thinking that the policy could differ in relation to different departments; e.  If the province is indicating that program participants who enter a recreation facility must be vaccinated, it would make sense that staff/volunteers associated with those facilities and programs be vaccinated before implementing a policy.

Yes, different policies may be required based on departments within an organization. For example, a policy may be different for those employees who regularly interact with the public, particularly at-risk populations (such as children, and the elderly population). In contrast, it may not be necessary to impose the policy on employees who occupy a role that is largely administrative, with less public interaction as a component of their duties.

17. What is the risk to mandating policies when someone has an adverse reaction?

Some adverse reactions to the Covid vaccine may preclude an employee from becoming fully vaccinated. If an employee is concerned about obtaining a second dose, they should consult their medical health care provider to determine if they qualify for a medical exemption based on the criteria set forth by the Province of Manitoba. If the employee does not meet the Provincial criteria (but still raises a possible need for an accommodation), an employer should still consider and assess their request on an individual basis.

18. If vaccination requirements are not included in employment contracts, would this affect employers liability in case of termination?

This is a very general question, and each case of termination requires its own analysis, and the vaccination requirement will depend on whether there is a policy in place, and what that policy entails. At the outset, we’d recommend seeking legal advice prior to terminating an employee for not being vaccinated.

If an employee is required to abide by all employer policies as a condition of their employment, then they would be required to follow the terms of the Covid Vaccination Policy, provided it is reasonable. If the Employer wishes to implement a Covid Vaccination Policy, the Employer must provide all employees with reasonable notice of the implementation of a Covid Vaccination Policy, and must provide the employees with reasonable time to comply with the Covid Vaccination Policy (ie: arrange vaccination or arrange testing, etc.)   

19. If fully vaccinated people can get and transmit Covid like everyone else, why are only the unvaccinated required to test? Isn’t that discrimination?

Based on Manitoba’s Human Rights Code, discrimination may only apply to a protected ground within the Code (ie – a medical or religious basis), and not based on personal choice. Though decisions regarding discrimination and vaccination status have yet to make their way through the Courts and Human Rights Commissions, etc., it is likely not a discriminatory action to require employees to submit to regular COVID testing if required in a COVID-19 vaccination policy, since the basis for this requirement is consistent with Provincial Public Health Orders and recommendations as an alternative to full vaccination status.

20. What about when advertising for a job? Can we say that we will only consider someone who is vaccinated?   For context, this position is for a senior services coordinator working with seniors.

We would recommend stating that all applicants must abide by all policies of the Employer.  As a result, the Employer should have a Covid Vaccine Policy detailing the Employer’s position on vaccination status for employees and any alternatives to full vaccination, such as regular testing protocols.  Different departments or different positions within the Municipality may have different policies based on the position (ie: working with seniors or vulnerable individuals). If current employees must be vaccinated in accordance with a particular policy, then it would be reasonable to require prospective employees to similarly adhere to this requirement.

** This content is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor client relationship. **