Vaccination Policies in the Workplace – Can Employers Mandate or Not?
By: RBS LawyersThe rollout of the coronavirus disease (COVID-19) vaccines across the country has raised questions about whether vaccines can be made mandatory in the workplace. The answer, unsurprisingly is – it depends.
Mandatory vaccination in itself is not unprecedented in Canada. Several provinces have legislated mandatory vaccination in public schools with limited exemptions for parents that can demonstrate medical or religious/conscience basis for refusing their children from getting vaccinated [1]. Similar mandates, by way of “Vaccine or Mask” (“VOM”) policies, have been instituted for healthcare workers serving vulnerable populations during the flu season in provinces including Ontario and British Columbia. The VOM policy, at least in British Columbia, was found by an arbitrator in 2013 to be a reasonable infringement of privacy rights, in part because of the expert evidence in support of such policies, as well as the fact that it provided healthcare workers the option to either get immunized or wear a mask, and was therefore not discriminatory.
The rules around mandatory vaccination in the broader workplace however are largely an unchartered territory, raising questions for many as to their rights in the workplace and ability to refuse vaccination. The matter is further complicated by the novelty of the pandemic and the current evidence suggesting that the COVID-19 virus is more lethal and contagious than the seasonal flu.
While employers cannot force employees to get vaccinated, they may have options for managing employees who refuse to get vaccinated. The options available to employees will depend on the nature of the employer’s business, the individual circumstances of the employee and his or her reasons for refusing, and the evidence around the efficacy of the vaccine itself.
It is unlikely that any form of mandatory vaccination policy would be deemed reasonable for non-essential workplaces, particularly where employees are able to perform their job functions remotely. Consequently, an employer will likely be found unjustified in sanctioning or terminating an employee who refuses to get vaccinated.
In such circumstances, rather than mandating vaccines, employers may consider hosting vaccination fairs once the vaccine is more readily available and can be directly procured. Alternatively, employers may allow employees to take time off during the workday to attend a vaccine clinic. Employers could also benefit from instituting a return to workplace program premised on increasing awareness about the benefits of vaccination from a workplace safety perspective.
The case may be different for workplaces that require employees to not only be physically present in the workplace, but also regularly interact with patrons. Mandatory vaccination can potentially be a term of the employment contract, which if not followed may be grounds for dismissal. However, it would be important to determine the reasons for refusal. An employee who does not want to get vaccinated on the basis of a protected ground (e.g. disability, religious, or conscience reasons) must be accommodated to the point of undue hardship.
Ultimately, any action taken by an employer should involve balancing the individual employee’s right to privacy and human rights with the health and safety concerns of other employees and patrons, and the business’ capacity to provide accommodation.
[1] Immunization of School Pupils Act, RSO 1990; Public Health Act, SNB 1998, c P-22.4, s
42.1
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