Employer and employee vaccination questions for foodservice and hospitality

Published September 8, 2021

There have been a number of questions surrounding vaccinations and the foodservice industry. We reached out to Mike MacLellan, Partner at CCPartners who helped us answer some of the most frequently asked questions we have received from employers and employees.

In addition, on September 2nd, CCPartners conducted a webinar providing a look at the current landscape of vaccinations. View the webinar below.

Employers Questions

The following is valid as of September 3, 2021:

Can we force associates to vaccinate before returning to work? 

No, you cannot force an employee to undergo a medical procedure. However, you can encourage and even incentivize receiving the vaccine. You cannot impose discriminatory policies or practices in regards to vaccination status, but you may treat employees differently for some purposes depending on vaccine status. 

Can we make it a company policy that our employees must be vaccinated?

Yes, you can – but only to a reasonable degree. Some employees may be unable to get the vaccine for reasons related to health or religion. You would need bona fide occupational requirements with no alternatives to set a policy that would allow you to deny employment to someone for a reason that is otherwise protected by human rights.

Are we able to ask employees if they are vaccinated?

Yes.  Normally an employer can only ask for an employee’s private health information in very limited circumstances. The COVID-19 pandemic is now one of those circumstances.  In some industries, COVID-19 vaccine disclosure from employees is mandated by government! Disclosure of vaccine status (with supporting documentation) is a feature of many legitimate COVID-19 Vaccine workplace policies and determines the conditions of continued employment for the duration of the pandemic.

Remember that all personal health information, including vaccine status needs to be collected and stored in a strictly confidential manner.

Can we give preference to bringing back vaccinated front-line employees over non-vaccinated?

Yes.  However, all employers should keep in mind that they owe a duty to accommodate employees who cannot be vaccinated for reasons protected by human rights laws. In that case, you will have to explore options for returning the non-vaccinated employee that would not result in an undue hardship – which will most likely be based on health and safety of other staff and patrons. For example, is PPE sufficient to keep the workplace safe? What about duties where they do not have to personally interact with staff or patrons?

Can we ask non-vaccinated staff to remain masked once restrictions are lifted?

Yes, if it is reasonable to do so in the circumstances you may incorporate this into your COVID-19 Vaccine workplace policy.

Are we able to demand a rapid test prior to shift if it becomes available to us?

Yes, but there would be a number of guidelines developed and conditions for safely gathering and storing private personal health information. You may want to restrict this practice to unvaccinated employees so that you are not unnecessarily collecting and storing personal health information.

Employee Questions

Can I be forced to receive a vaccination in order to come back to work? 

In limited situations, yes. As a front-line worker in a restaurant, it is more likely than not that full vaccination may be a bona fide occupational requirement.

Can I, as an employee, refuse to work alongside a co-worker who has not been vaccinated, on the grounds that it is unsafe?

Any employee should report any unsafe or potentially unsafe workplace hazard. Your employer then has to make an assessment and determine whether a work refusal is appropriate, and if so, address the hazard. If the co-worker is unvaccinated for a reason protected by human rights law, and reasonable precautions are in place, it may be possible for an unvaccinated employee to continue working. 

If employers mandate the vaccine, will they be responsible if the employee has adverse vaccine reactions?

When a person gets the vaccine they have to first go through a medical screening that should catch potential for adverse reactions. If an employee is screened as having a potential adverse reaction, they could choose not to get the vaccine and seek accommodation for a ground protected by human rights laws. It is hard to see how the employer would be liable, for an adverse effect, which is statistically very unlikely to occur.

If I refuse to be vaccinated, will I be permitted to return to work?

It depends on safety standards and bona fide occupational requirements. A front-line worker could very realistically be put on an unpaid leave of absence or lose their job if they choose not to be vaccinated when they are recalled to work. Different considerations apply to those who are unable to be vaccinated for reasons protected by human rights law.

Can I refuse to serve someone who is unvaccinated?

Some provinces are instituting “vaccine passports” and patrons will not be able to access restaurants and bars without proof of vaccination. In that case, any unvaccinated person who gains access to your workplace ought to be removed, and you should not serve them.

If there is no mandatory proof of vaccine system in your jurisdiction, then a refusal to serve an unvaccinated person must be based on legitimate health and safety complaints. Refusal to serve an unvaccinated indoor diner is more likely to be reasonable than a walk-up customer who is social distancing and wearing full PPE.

Webinar Recording – Discussion

As employers attempt to navigate the fourth wave of the COVID-19 pandemic, there are more questions than answers when it comes to managing vaccination in the workplace.

On September 2, 2021 CCPartners recorded a webinar sharing the latest information and insight.

Webinar Recording – Q/A Session

If you’re interested in learning more or developing your own policy, please contact:

Mike MacLellan, Partner, CCPartners
905-874-9343 x251 or 1-877-874-9343

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