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