The Government of Canada’s COVID policies have been a source of much news lately. In particular, one of the federal government’s recent COVID policies will require mandatory COVID vaccinations for workers in all federally regulated workplaces effective early in 2022. This requirement was announced by the federal Minister of Labour on December 7, 2021, stating that the Government of Canada would be proposing regulations (“New Regulations”) under Part II of the Canada Labour Code (the “Code”) to make vaccination mandatory in all federally regulated workplaces in the country, which is expected to come into force sometime early this year. 

The New Regulations are intended to complement existing occupational health and safety measures, such as masking, handwashing, and physical distancing, and to provide further protection against the risk of COVID-19 transmission in the workplace. 

Who are federally regulated employees?

Currently, mandatory vaccination policies already exist for public sector employees working in the federally regulated air, rail, and marine transportation sectors, and travelers on these modes of transportation. The New Regulations were introduced to ensure employees in all other federally regulated industries in Canada, such as road transportation, telecommunications, and banking, are also vaccinated. 

Federally regulated industries and workplaces in Canada that are governed by the Code include: 

• Federally regulated private sectors (parts I, II, III and IV of the Code):
  • air transportation, including airlines, airports, aerodromes and aircraft operations;
  • banks, including authorized foreign banks;
  • grain elevators, feed and seed mills, feed warehouses and grain-seed cleaning plants;
  • First Nations band councils and Indigenous self-governments (certain activities);
  • most federal Crown corporations, for example, Canada Post Corporation;
  • port services, marine shipping, ferries, tunnels, canals, bridges and pipelines (oil and gas) that cross international or provincial borders;
  • postal and courier services;
  • radio and television broadcasting;
  • railways that cross provincial or international borders and some short-line railways;
  • road transportation services, including trucks and buses, that cross provincial or international borders;
  • telecommunications, such as, telephone, Internet, telegraph and cable systems;
  • uranium mining and processing and atomic energy; and
  • any business that is vital, essential or integral to the operation of one of the above activities.

• Federally regulated public sector (parts II and IV of the Code only):
  • the federal public service; and
  • Parliament (such as, the Senate, the House of Commons and the Library of Parliament).

• Private-sector firms and municipalities in Yukon, the Northwest Territories and Nunavut (part I of the Code only).

Workers who do not work in a federally regulated industry are governed by the employment standards legislation of the province or territory where they work. In Alberta, that legislation is the Employment Standards Code. 

Are there exceptions to this vaccine mandate?

Exceptions to the vaccination mandate for federally regulated workers include:

• Indigenous Governing Bodies and First Nation Band Councils: The Government of Canada will work with Indigenous partners to provide information on the new measures should they wish to follow the same approach, however, doing so will be at their discretion. This is in recognition of Indigenous peoples’ right to self-determination and self-government, and the Government’s commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples.

• Workers with valid exemptions: Federally regulated workers who are exempt from this mandate must have reasons for an exemption that are protected by the Canadian Human Rights Act (the “Act”). 

What happens if workers are not vaccinated?

The federal government has announced that employers who do not comply with their obligations under the Code may be subject to compliance and enforcement measures, including administrative monetary penalties.

Since the specific details of the New Regulations have yet to be released, it is unknown what exactly will happen to unvaccinated workers in federally regulated industries who do not have valid exemptions under the Act. Such workers would likely be placed on unpaid leave, similar to what the federal government is doing for unvaccinated public servants without valid exemptions. It is also unknown whether the New Regulations would apply to workers who are working remotely, or just to onsite workers in the workplace, although we think it is likely that the federal government would apply such requirements to both remote and on-site workers similar to what it has mandated for public servants.    

What is expected of federally regulated employers?

According to the Labour Program of Employment and Social Development Canada’s Consultation Paper on COVID-19 Vaccination Regulations, employers in federally regulated industries will have the following responsibilities in relation to this vaccination mandate: 

• Ensure they obtain an attestation of vaccination or proof of vaccination from all employees; 
• Exempt employees who, for reasons protected by the Act, are unable to provide an attestation of vaccination or proof of vaccination; 
• In consultation with the policy committee, or if there is no policy committee, with the work place committee or the health and safety representative, conduct a work place assessment to identify whether any additional measures are necessary to prevent the transmission of COVID-19 in the work place before an exempted employee attends a work place controlled by the employer; 
• When necessary, take additional measures to prevent the transmission of COVID-19 in the work place before an exempted employee attends a work place controlled by the employer; 
• In consultation with the policy committee, or if there is no policy committee, with the work place committee or the health and safety representative, identify the limited circumstances when employees who are not required to attend the workplace are excluded from having to provide an attestation of vaccination or proof of vaccination; and, 
• Keep a record of:
  • The COVID-19 vaccination status of employees, including the attestations of vaccination or proofs of vaccination; and,
  • The completed workplace assessments and any preventive measures taken. 

We recommend that all employers in federally regulated industries in Canada consult with an experienced employment lawyer to understand their rights and obligations with respect to the implementation of the New Regulations. 

CARSCALLEN LLP’S EMPLOYMENT, LABOUR AND HUMAN RIGHTS EXPERTISE

Whether you are an employee or an employer, Carscallen’s experienced team of Employment, Labour and Human Rights lawyers can assist you. Our lawyers specialize in practical, individualized advice to help you understand your rights, duties and responsibilities as an employer or an employee.

Our team of lawyers provide tailored, proactive advice to help successfully navigate every stage of the employment relationship. We have the legal expertise to help minimize problems and disputes before they happen, as well as the ability to resolve conflict quickly and constructively when it arises.

If you have a question about the New Regulations for federally regulated workplaces, please contact any member of our Employment, Labour and Human Rights team.