Answers to your COVID-19 Questions

by | Mar 1, 2021 | Take 5 Articles

Can employers compel employees to get vaccinated against COVID-19? What if an employee refuses to work with someone who is unvaccinated?

As COVID-19 vaccinations become more readily available, you probably have lots of questions about your role as an employer. You’ll find answers to some of the most frequently asked questions at the end of this article, plus information about the important issues at play.

First, a general caveat: the rules and regulations around COVID-19 are fluid and ever-changing. Every jurisdiction is different. Be sure to check with your local public health authority and workers compensation board for information and updates specific to your province or territory.

Issues at play

Vaccinations in the workplace engage laws for privacy, human rights and occupational health and safety. Legal principles therefore provide the foundation for what employers can (and cannot) do in the workplace.

Human rights legislation is quasi-constitutional, which means that it generally takes precedent over other legislation. It prohibits discrimination based on “protected grounds” such as religion, mental disability and physical disability. Individuals with a protected ground must be accommodated to the point of undue hardship.

Possible mandatory vaccination policies engage protected grounds as follows: certain religions oppose vaccinations; some individuals have medically recognized needle phobias; and some individuals are prone to allergic reactions resulting from vaccination.

The hallmarks of privacy legislation are consent, reasonableness and proportionality. An organization must not collect, use or disclose personal information about an employee without the consent of the individual or unless permitted by statute. Even with consent, the information requested by an employer must be proportional to the necessity of the information. For example, when an employee takes time off for a medical leave, the employer is entitled to receive the employee’s prognosis (i.e., the timeline for getting better) but not the diagnosis (i.e., the illness causing the absence). As well, information must be collected in the least intrusive way possible. For example, random drug testing is generally not permissible even in safety sensitive environments because it is an unreasonable intrusion into an employee’s privacy.

With respect to occupational health and safety, each jurisdiction in Canada has distinct rules that employers must take into account.

The above issues largely protect the interests of employees. But employee rights are not absolute and need to be balanced against workplace safety and the legitimate business interests of an organization.

Vaccination decisions

Although COVID-19 vaccination is novel, the issue of mandatory vaccinations is not. Arbitrators in B.C. and Ontario have dealt with mandatory “vaccination or mask” policies regarding influenza vaccination in the healthcare sector—with opposite results. It’s also important to keep in mind that policies in the healthcare sector are subject to the “precautionary principle,” which means that a policy that otherwise infringes on an individual’s rights may be more justifiable given the heightened risks in healthcare settings.

In B.C., health authorities implemented an immunization or mask policy in 2013 for healthcare workers in the event of an influenza outbreak. The union alleged that the policy was unreasonable, discriminatory and contrary to the Charter of Rights and Freedoms. Both sides submitted voluminous amounts of expert evidence on the efficacy (or not) of vaccines and masks. The arbitrator concluded that the policy was reasonable in healthcare settings as it represented the least intrusive way to ensure patient safety. Notably, the policy did not compel vaccinations. It offered employees a choice: vaccinate or wear a mask. In addition, the collective agreement expressly permitted the employer to require vaccinations in certain circumstances.

A very similar case occurred in Ontario in 2015, but with very different results. In that case, the nurses’ union opposed a hospital policy to vaccinate or wear a mask. Again, both parties brought forward significant amounts of expert evidence. In this case, however, the arbitrator deemed the policy to be unreasonable based on his interpretation of the evidence related to the use of masks.

There are important distinctions between the influenza policies cited here and COVID-19 policies. First, influenza does not pose the same public safety risks as COVID-19. Second, the influenza decisions dealt with “vaccinate or mask” policies. Employees were offered a choice, an approach less invasive than a COVID-19 policy compelling vaccination. These two decisions also reflect how we can anticipate courts and tribunals will deal with the issue of mandatory vaccination policies: they will likely reach different conclusions depending on the circumstances until the appellate courts or Supreme Court of Canada rule on the matter.

Given the ever-changing landscape and myriad legal issues at play, employers are strongly encouraged to seek legal advice before implementing any vaccination policies.

Frequently Asked Questions

Will the federal or provincial governments mandate COVID-19 vaccinations?

No. The Government of Canada and provinces have confirmed that vaccination is not mandatory. While some provinces have legislation permitting mandatory vaccinations generally, no jurisdiction in Canada has confirmed that they intend to enforce such legislation.
Can an employer compel its employees to get a vaccination?
Employers will not likely be permitted to compel vaccinations: such policies will be deemed an unnecessary intrusion into an individual’s privacy. Courts and tribunals will balance employee rights with workplace safety. Employers who implement a mandatory vaccination policy must be able to explain why occupational health and safety rules (such as physical distancing, working from home, and mask wearing) are not sufficient to protect worker safety and the employer’s legitimate business interests. Employers will also need to accommodate individuals who are unable to receive the vaccination for reasons related to human rights protections. Employers who implement mandatory vaccination policies should exercise caution as they may be liable if an employee develops an adverse reaction upon receiving the vaccine. Mandatory vaccination policies will likely be more acceptable in industries with increased health or transmission risks, such as long-term care homes, camps and healthcare settings. It may also be more likely in Ontario, which has longstanding legislation requiring immunization for employees in early childcare, long-term care homes and ambulance services.
Will employees need to wear masks in the workplace after vaccination?
This depends on whether occupational health and safety rules and local authorities require masks in the workplace. Masks are mandatory in many workplaces, particularly where it is not possible to maintain appropriate physical distancing. Occupational health and safety regulations do not currently state that masks will not be required upon vaccination. While the efficacy of vaccination appears extremely high, it is still unknown whether vaccinated individuals can act as carriers and transmit the illness to others.
What can an employer do if an employee refuses to wear a mask (including after vaccination)?
Employees must follow occupational health and safety guidelines or risk discipline. Employees who are unable to wear a mask due to a protected ground under human rights legislation may require accommodation to the point of undue hardship, but accommodation does not necessarily include allowing them to not wear a mask where a mask is required by law.
Can employees refuse to work with unvaccinated employees under occupational health and safety legislation?
That is very unlikely. Employees have the right to refuse unsafe work; however, they must identify how the unsafe work is contrary to occupational health and safety guidelines. Assuming that the workplace is following proper occupational health and safety protocols, the workplace is likely not “unsafe.” In other words, if the workplace was “safe” prior to an employee being able to receive a vaccine, it is still “safe” for occupational health and safety purposes after an employee becomes eligible to receive a vaccine.
Are employees required to advise employers if they are vaccinated?
If a valid vaccination policy is in place (e.g., for healthcare workers), then yes. However, these employers will want to take great strides to ensure the information is kept confidential. In remaining workplaces, requiring employees to advise of vaccination will constitute an unreasonable intrusion into an individual’s privacy.
Will employers be able to organize workplace COVID-19 vaccination clinics, similar to what can be done for flu vaccinations?
No. COVID-19 vaccination programs are being rolled out pursuant to provincial guidelines, none of which currently allow for vaccinations at work sites.
Will my benefits plan cover the cost of the vaccine?
The federal government is supplying COVID-19 vaccines at no charge so there should be no need for benefits programs to cover the cost.

Colin Edstrom is a lawyer practicing labour and employment law at PUSHOR MITCHELL LLP in Kelowna, B.C.