With the omicron variant of COVID-19 currently on the rise and making headlines, both the provincial and federal governments continue to assess workplace mandates and restrictions to stabilize the economy and protect the population.

Mandatory Vaccination for Federally Regulated Workplaces

On December 7, 2021, the Government of Canada announced that it will propose regulations under Part II of the Canada Labour Code to make COVID-19 vaccinations mandatory in federally regulated workplaces. According to the Government, these regulations would complement existing occupational health and safety measures, such as masking, handwashing, and physical distancing, and provide further protection against the risk of COVID-19 transmission. In its press release, the Government stated that it would consult with key stakeholders, including representatives of small and medium-sized employers, “as it works expeditiously to finalize the new regulations, which would come into force in early 2022.”

Vaccination is already a mandatory requirement for public sector employees working in the federally regulated air, rail, and marine transportation sectors, as well as travellers on these modes of transportation. The new regulations will now ensure that employees in all other federally regulated industries, such as road transportation, telecommunications, and banking, are also vaccinated in order to fight the increasing spread of COVID-19.

As the Minister of Labour Seamus O’Regan Jr. has stated:

“Canada has led the world on vaccination rates, thanks to Canadians, their belief in science, and their willingness to roll up their sleeves. Making vaccination mandatory across all federally regulated workplaces will protect workers, their families, and their communities. It will help us finish the fight against COVID-19 and help us sustain a strong and stable economy.”

Public Servants in the Core Public Administration Require Vaccination

All federal public servants in the Core Public Administration, including members and reservists of the Royal Canadian Mounted Police, must also be vaccinated against COVID-19. This requirement applies whether employees are teleworking, working remotely or working on-site. According to Government reports, more than 95% of these employees have attested to being fully vaccinated, and approximately 98% have had at least one dose.

Exemption for Indigenous Government Bodies and First Nation Band Councils

In recognition of Indigenous peoples’ right to self-determination and self-government, the Government has stated that Indigenous Governing Bodies and First Nation Band Councils will be exempted from the new mandatory vaccination requirements. The Government has pledged to 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 approach, the Government says, complements its commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples.

Who Are Federally Regulated Employees?

Federally regulated employees are individuals who work for employers who are governed by federal law. The Canada Labour Code sets out the main rules that apply to federal employees, including minimum wage, hours of work, vacation entitlement, and employment leaves.

The Canada Labour Code regulates the following industries and workplaces:

• 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
  • 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 
  • 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)

Employees who do not work for federally regulated employers are governed by the employment standards legislation of the particular province or territory in which they work.

The Government reports that there are approximately 18,500 employers in federally regulated industries, including federal Crown corporations, which together employ 955,000 people (about 6% of all employees in Canada). The vast majority (87%) of these people work in companies with 100 or more employees. These figures exclude the federal public service. Including the federal public service, there are approximately 19,000 employers and 1,300,000 employees (about 8.5% of all employees in Canada).

Penalties for Non-Compliance

Employers who do not comply with their obligations under the Canada Labour Code may be subject to compliance and enforcement measures, including administrative monetary penalties. It is therefore prudent that all federally regulated employers begin to consider the implementation of a vaccine mandate in their workplace and how to assess and respond to employees who claim medical exemptions or refuse to be vaccinated.

Employers who have already implemented vaccination policies should also review their policies in light of the new mandatory requirements once they are announced, in order to ensure they are compliant. It is important to consult a trusted legal adviser before implementing or making changes to any vaccination policy.

Contact Toronto Employment Lawyers Grosman Gale Fletcher Hopkins LLP for Advice on Vaccination Mandates

For more than 30 years, Grosman Gale Fletcher Hopkins LLP and its predecessor firm has built a reputation as one of the leading employment and labour law firms in Canada. We advise both employees and employers on vaccination mandates and the ever-changing requirements for COVID-19-related workplace policies. To find out how we can help with your employment matter, contact us at 416-364-9599 or reach out online.