Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Updated May 12, 2021: On May 11, 2021, Manitoba introduced Bill 73, The Employment Standards Code Amendment Act (COVID-19 Vaccination Leave) (Bill 73), for first reading. If Bill 73 receives Royal Assent, it will amend the Employment Standards Code to entitle employees to three hours of paid leave each time they receive a COVID-19 vaccination. Employers will be required to pay employees the employee’s wage rate for regular hours of work during the pay period in which the leave occurs, unless the employee’s wage for regular hours of work varies from pay period to pay period; in that case, the employer will be required to pay the employee their average hourly wage. Employees will be required to provide their employer as much notice as is reasonable and practicable. Proof of entitlement may be requested by employers, however they may not request a medical certificate.
On April 27, British Columbia’s Bill 3: Employment Standards Amendment Act, 2021 (see below), received Royal Assent. (See April 26, 2021 Update below for details.)
Updated April 26, 2021: On April 21, 2021, Alberta introduced and passed Bill 71, Employment Standards (COVID-19 Vaccination Leave) Amendment Act, 2021, which amended Alberta’s Employment Standards Code to create a COVID-19 Vaccination Leave. In accordance with this leave, employers are required to provide employees, upon the employees’ request, up to a maximum of three consecutive hours of leave to receive a COVID-19 vaccination, or more than 3 consecutive hours if, in the employer’s opinion, a longer period is warranted by the circumstances. An employer must ensure that an employee does not lose any earnings or other benefits as a result of taking this leave. Before taking this leave, the employee must give the employer as much notice as is reasonable and practicable in the circumstances. Furthermore, if requested by the employer, the employee must, as soon as is practicable, provide to the employer reasonably sufficient proof that the employee is entitled to the leave; however, for this purpose, an employee is not required to (a) provide the employer with a medical certificate or record of immunization as verification of the employee’s entitlement to a leave, or (b) disclose to the employer any of the employee’s underlying medical conditions.
Furthermore, on April 19, 2021, British Columbia introduced Bill 3, Employment Standards Amendment Act, 2021, for first reading. Although Bill 3 is not yet passed, if passed it will provide for a paid COVID-19 vaccination leave for up to three hours for each request made for such a leave, effective as of April 19, 2021. The intention of Bill 3 is to amend British Columbia’s Employment Standards Act (ESA) to expand the COVID-19 vaccination added by regulation on April 1, 2021, which permits an employee to take unpaid COVID leave to be vaccinated against COVID-19, or to assist a dependant who is being vaccinated against COVID-19. The employee will be required to provide reasonably sufficient proof of their entitlement to the leave, however the employer will not be permitted to request a note from a doctor or a nurse.
Updated April 7, 2021: On April 1, 2021, British Columbia amended its Employment Standards Regulation to, among other things, permit an employee to take unpaid COVID leave to be vaccinated against COVID-19, or to assist a dependant who is being vaccinated against COVID-19. The amendment does not indicate how much time employees are entitled to for this vaccine leave.
Updated March 19, 2021: On March 18, 2021, Saskatchewan amended The Occupational Health and Safety Regulations, 2020 effective immediately to provide for a Special Vaccination Leave that allows for three consecutive hours during work hours without losing pay or other benefits for an employee to receive a COVID-19 vaccination. Workers are entitled to more than three consecutive hours if the employer determines the circumstances warrant a longer break from work.
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With increasing concerns over COVID-19 variants and the recent acceleration of the COVID-19 vaccination rollout to Ontario’s public, Ontario Premier Doug Ford was recently asked if the Government of Ontario would consider passing legislation that would allow employees to take three hours’ paid time off to get the COVID-19 vaccine. Premier Ford indicated he would be in favour of allowing front-line health-care workers to take such paid time off, but he said nothing about workers in other sectors.1
Each employer will have to determine its own policy and will have to take into account any minimum requirements if and when legislation is passed in Ontario. As two doses are required for three of the four vaccines currently authorized for use in Canada, employers will have to consider their policy for each dose.
As previously discussed, the federal and provincial governments have not made vaccines mandatory. Prime Minister Trudeau has promised that all Canadians could be vaccinated by September 2021 if they want to be. Any vaccination requirement imposed by employers would have to be justified as a necessary measure pursuant to occupational health and safety legislation, and balanced against any applicable human rights and privacy legislation, and any guidance from the federal and provincial governments. At this early stage of limited vaccine availability, however, most employers will likely be strongly encouraging employee vaccination by providing education/referral to resources about its benefits, rather than mandating it.2
An employee’s employment contract may entitle an employee to paid time off to get the vaccine, or to paid sick leave, which the employee might be able to utilize to get the vaccine. In the absence of any contractual right to time off, Ontario’s Employment Standards Act, 2000 (ESA) does not provide for paid leave to get vaccines. Employees might be able to use unpaid sick days; under the ESA, they are entitled to three such days after two consecutive weeks of service. Some employees cannot afford the reduction in income that would ensue, however, and this may cause them to choose their income over the vaccination. Although not required to do so by law, some employers have already removed this deterrent by advising employees that if they choose to get vaccinated, they will be provided with paid hours off, with additional paid hours should a second dose be required. The number of paid hours offered seems to vary between two to four hours per dose.
An employee may refuse to be vaccinated on a ground covered by human rights legislation, such as religion or disability, or for a valid medical reason, such as an underlying medical condition that would make it dangerous for the employee to be vaccinated. Employers should be mindful that such an employee may claim that they are being treated differently from employees who get vaccinated and receive paid time off to do so.
Whether employers are going to mandate or strongly encourage employees to get vaccinated, it may be in employers’ interest to demonstrate flexibility by providing paid time off since widespread adoption of the vaccine will save lives, build herd immunity, and accelerate a return to normal living, normal business, and an improved economy.
1 Many other jurisdictions are considering paid time off to allow employees to get COVID-19 vaccines, and some jurisdictions have already enacted legislation.
2 Littler’s latest survey of more than 1,800 in-house counsel, HR professionals and C-suite executives in the United States dated February 2021 found most employers unlikely to mandate COVID-19 vaccination. Instead, most are focused on efforts to encourage vaccination, even when vaccines are widely available.
3 We note that three hours paid time off from work is allotted to employees to vote in an election under provincial and federal election legislation. Just prior to the last federal election in the fall of 2019, we wrote about this employee entitlement under the Canada Elections Act here.