As more Canadian employers implement coronavirus vaccine policies for staff and clients, Hermie Abraham, an employment lawyer, says provisions that still allow unvaccinated people to participate are at the core of their legality.

Porter Airlines, Sun Life Financial Inc. and Twitter Inc. have joined a growing list of Canadian businesses that will require their employees to be vaccinated, but there are caveats. The Toronto-based airline says unvaccinated employees can still work provided they get tested 72 hours prior to a shift and that it’ll provide free rapid testing in certain jurisdictions.

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“At the core of it, it’s to ensure the health and safety of our team members and as well passengers,” says Michael Deluce, president and chief executive officer of the airline, which has not been operating for more than a year due to the coronavirus pandemic. “With our relaunch on Sept. 8 . . . we wanted to have the safest possible environment from the get-go.”

Sun Life says only employees who choose to return to the office during an ongoing back-to-work trial will have to be vaccinated. The insurance company recently announced it would allow most of its 12,000 employees to work from home long-term.

As companies operating under federal regulations, Porter and Sun Life would have fallen under the government’s developing plans to require federal workers to be vaccinated. However, the companies said they’ve been planning to implement a vaccination policy for onsite workers for some time.

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“Fundamentally health is part of who we are, it’s part of our purpose,” says Sun Life’s president, Jacques Goulet. “We want to make sure as we gradually make our offices available for work, that it’s a safe environment, and the full vaccination for us was an important step.”

But Abraham says a vaccination policy such as Sun Life’s is only legally tangible because of the fact that workers are still able to be unvaccinated and work from home. She says the same is true for the policies of entertainment company Maple Leaf Sports and Entertainment Ltd. and Porter, which have provisions for unvaccinated employees to work with regular testing.

“The employer can set the rule — there’s nothing in law that says you can’t set a rule — but for that rule to be able to be legally dispensable for existing employees, you want to make sure you’re giving them options to comply,” says Abraham.

Since there are other protective measures against the coronavirus, such as social distancing, masking and testing, she says there are ample ways for employers to allow unvaccinated employees to work safely. However, she says companies won’t be on the hook for costs that employees incur from being unvaccinated, such as if they’re required to pay for coronavirus testing in the future.

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Abraham compares it to a company moving its headquarters from one location to another, which could cost an employee more money for commuting. “That’s not necessarily the employer’s problem.”

She says although employees might incur a financial cost for testing, they were offered the ability to avoid it by getting vaccinated. That means an employer can reasonably decide not to cover the costs associated with being unvaccinated, she points out.

As companies wait for more details around federal government requirements, Sun Life is also waiting to decide whether its own vaccination requirement for onsite workers will continue past the current back-to-work trial, when offices are operating at 25 per cent capacity. “We’ll cross that bridge when we get there,” says Goulet. “We may find there’s new information popping up, we may find in a few months the government will declare officially that the pandemic is over — there’s so many variables.”

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