Air Canada’s recent decision not to offer rapid testing as an alternative for employees who refuse to be vaccinated against the coronavirus sets a tough new precedent that other companies may emulate, experts say.
Canada’s largest airline will require all employees to disclose their vaccination status by Oct. 30. Employees who don’t have a valid reason for not having their shots, such as a medical exemption, will face consequences “up to and including unpaid leave or termination,” the airline said.
Chantel Goldsmith, an employment lawyer and partner with Samfiru Tumarkin LLP in Toronto, says Air Canada’s move is groundbreaking in that it’s a true vaccine mandate. She says companies that offer their unvaccinated employees wiggle room in the form of testing aren’t really making vaccination a condition of employment at all.
Air Canada’s announcement came a week after most of Canada’s big banks announced their own employee vaccination policies. The airline and banking sectors are both federally regulated industries and, as such, have been ordered by Ottawa to require vaccination for their employees.
However, while many companies — including the Bank of Montreal and TD Bank — will allow unvaccinated workers to remain on the job as long as they submit to a regular COVID-19 rapid testing regime, Air Canada won’t.
“Using the word mandating doesn’t actually mean mandating in that circumstance,” says Goldsmith. As long as the airline lives up to its commitment to accommodate employees who, for legitimate reasons, can’t be vaccinated, the airline is within its legal rights, she adds. “I think this is the first we’ve seen by a big major employer that’s taken that step, but I do foresee other employers following suit.”
However, that doesn’t mean that companies with strict vaccination mandates won’t face pushback. The International Association of Machinists and Aerospace Workers, the union that represents thousands of Air Canada employees including ground crews, said in a statement it “categorically rejects” the use of termination and discipline as a way to increase vaccination rates.
“There are other ways to encourage participation in a vaccination program such as regular testing, PPE, remote work and proven health and safety protocols,” said the IAMAW. “Vaccination should not be the sole method of curbing COVID-19.”
Air Transat, Porter Airlines and WestJet Airlines Airlines Ltd. have also said they will comply with the federal government’s vaccine mandate for transportation industry employees. However, Porter has said unvaccinated employees can still work provided they get tested 72 hours prior to a shift, while WestJet and Transat haven’t yet announced the details of their vaccination policies.
The Air Line Pilots Association, which represents pilots at WestJet and Transat, said in an internal memo to members obtained by The Canadian Press that it “rejects threats of termination if vaccine requirements are implemented.”
Many Canadian workers who don’t work in federally regulated industries will soon need to tell their employer their vaccination status. The City of Toronto, the Toronto Transit Commission and several universities and health-care facilities throughout Canada have all recently stated their intention to require proof of vaccination from employees. Several technology companies including Twitter Inc. and Shopify Inc. have also rolled vaccination policies for employees in recent weeks.
And Canadian Natural Resources Ltd. — one of Canada’s largest oilsands companies — said it will be asking for proof of vaccination from all workers at its Horizon and Albian camps in northern Alberta. The company will offer a rapid testing program for unvaccinated employees.
Perry Berkenpas, executive director of the industry group Oil Sands Community Alliance, says vaccination rates among oilsands workers are as high as 75 to 80 per cent thanks to mass vaccination clinics held at work sites earlier this year. But he said many companies will continue using rapid testing as an added layer of safety.
“In this case CNRL’s made a choice in one direction — I haven’t heard where others are going on that yet,” says Berkenpas. “But rapid testing will be used where they think it’s necessary.”
Employers can require vaccination and fire employees who don’t comply with company coronavirus vaccine mandates or follow the lead of some U.S. employers taking other actions such as withholding perks or charging extra for health insurance.
Businesses for months have been encouraging workers to get vaccinated, in some cases offering incentives like time off or gift cards. But more are taking a harder stance and requiring vaccinations for any remaining holdouts, a push that’s gained momentum in the U.S. since Pfizer’s vaccine recently received full approval from the U.S. Food and Drug Administration.
Employers “feel like they’ve sort of hit that point where the unvaccinated are not going to do it unless there’s something significant making them do it,” says Wade Symons, a partner with Mercer.
It’s legal for businesses to require the shots and they could fire employees who don’t comply. In other cases, workers might be required to wear masks or get regular tests for the virus. Some companies also are considering making the unvaccinated pay more for their health insurance. At Delta Air Lines, unvaccinated employees on the company health plan will be charged US$200 a month to help cover costs for possible coronavirus hospital stays.
Symons says other employers will more likely add smaller charges of $20 or $25 per paycheque that might be refunded once the employee is vaccinated. Employers might also restrict the use of office space, company gyms or business travel only for the vaccinated. In Las Vegas, MGM Resorts International has said unvaccinated employees will not be paid for time off to quarantine if they test positive for the virus.
Vaccine requirements will mainly come from businesses that need workers on a job site, says Symons. Employers have to offer exemptions or accommodations from vaccine requirements for some who don’t get the shots for medical or religious reasons.
Walt Disney World and Ohio State University are among the large U.S. employers that said they’ll make vaccination mandatory since Pfizer’s shot was given the FDA’s full approval. U.S. Defense Secretary Lloyd Austin also says military troops must immediately begin to get the vaccine. But some states like Montana have either banned employers from requiring vaccines or limited when they can issue such a mandate.