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construction vaccine
March 7, 2021

Can the construction industry require mandatory vaccination of workers?

The nature of construction work makes physical distancing and other Infection Prevention and Control measures difficult to implement.  This heightens the importance of vaccinations in preventing and containing COVID-19 on construction sites.  Despite this, the complex contractual organization of construction projects, and the numerous players with overlapping health and safety obligations, human rights and freedoms, creates unique challenges for developing a vaccination strategy.  It is increasingly clear that COVID-19, and COVID-19 vaccinations, will be with us for some time; careful forethought and planning for dealing with vaccinations is required at all stages of the construction process, from initial procurement, through contract drafting, to managing onsite construction.   

The above factors raise numerous questions for participants in the construction industry, such as:

  • Can employers require that their employees be vaccinated or to disclose their vaccination status?
  • What influence can participants at higher rungs of the construction ladder, like owners, exert over participants at lower rungs, like contractors and sub-contractors?
  • Can an owner require a contractor to only employ vaccinated employees and subcontractors?
  • Can certain projects or construction sites be off-limits to non-vaccinated workers?
  • Who will bear primary responsibility for dealing with vaccinations on a given project?
  • What policies should be put in place regarding vaccinations?
  • What steps can be taken if an employee or other industry participant refuses to get vaccinated or comply with vaccination policies?

What does the law say?

Existing case law has not dealt with these issues to any significant degree. However, there is some direction from across Canada with regard to mandatory vaccination, which is not without precedent.  In Ontario and New Brunswick it is imposed by law in the public school setting with limited exceptions for certain medical and religious/reasons of conscience grounds.  In the workplace, the issue has been frequently litigated in the healthcare setting, where unions have challenged mandatory vaccination policies or policies such as “vaccinate or mask” against seasonal influenza as infringing on the collective agreement. However, the case law is inconsistent  as outlined in  our previous article.1 While “Vaccinate Or Mask” (“VOM”) Policies in healthcare settings were upheld in some cases,2 such policies were found to be unreasonable in others.3 Currently, there is no mandatory vaccination requirement for people working in health care, long-term care and retirement home settings in Ontario. 

Based on the pre-COVID-19 case law on VOM policies, it is clear that much will depend on the leadership of provincial and territorial medical officers of health to mandate vaccination.

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