Apr 29, 2021  By John Hyde

Can employers mandate Covid-19 vaccination

As Covid-19 vaccines become more and more available to the general public, a number of businesses have contemplated mandatory vaccinations for their workforce. What are the legal implications of such policies and, can they even be enforced? The answer is: yes, with some notable exceptions.

With limited and specific restrictions, employers are well within their rights to mandate that employees get vaccinated. The burden that COVID-19 has placed on Canadian businesses has been overwhelming.  In Ontario, the latest measures include a mandatory stay-at-home Order in place until at least May 19, 2021.  In Toronto and Peel Region, where new strains have run rampant in workplaces, orders enacted under the Health Protection and Promotion Act now require businesses (with limited exceptions, such as schools and pharmacies) with 5 or more cases of COVID-19 to shut down. 

These measures, along with the various others implemented over the past 13 months, would be considered extreme in the best of circumstances. Yet, in adopting these measures, governments have clearly signaled the primacy of controlling the virus above all else. Some have tried arguing that such measures infringe upon their rights to run their business or walk mask-less in indoor public spaces.  Those arguments have fallen mostly on deaf ears, as far as the courts are concerned. 

With Canada’s much anticipated (if not laggard) vaccine roll-out, it has been suggested that workplace policies mandating vaccinations are fraught with risks for employers. In our view, these concerns are overstated.  Rights do not exist in a vacuum. Just as one’s right to free speech does not entitle one to incite hatred of religious groups, an employee’s privacy or religious beliefs do not entitle them to contribute to a public health crisis raging out of control.  Assessing competing interests in the workplace is always a balancing act, and right now, that balance is tilted strongly in favour of health and safety. 

A mandatory vaccination policy for employees is supported by Canadian occupational health and safety legislation enacted in each province, and federally.  Under such legislation, employers are legally obligated to ensure that workplaces are safe. The medical evidence clearly demonstrates that vaccines are highly effective at controlling and preventing the spread of the virus.  In the circumstances, failing to require that employees get vaccinated could be a breach of that legislation. In Toronto and Peel, it also significantly increases the risk that a business will be ordered to shut down.

This does not mean that mandatory vaccination policies are not without nuance. Employers should consider where employees are working and applicable legislation. If employees are working on-site with other employees and/or customers, then a vaccination policy is more justifiable than if an employee is working from home. 

Organizations should also carefully consider potential human rights issues. Employers can expect some employees to claim that a medical issue prevents them from being vaccinated, or that it is contrary to a religious belief.  Such considerations should be accommodated to the extent there is some legitimacy to the claim, on a case-by-case basis. General anxieties about the vaccine and the science underlying it, in the absence of a demonstratable medical issue, do not require accommodation. The same goes for a general antipathy towards vaccinations in the absence of a sincerely held religious belief.

Even if there is a legitimate basis for not getting vaccinated, accommodation does not mean an employer must expose an unvaccinated employee to everyone else. For example, accommodation can include allowing an employee to work remotely indefinitely, if feasible.  In any event, health and safety standards that are genuinely adopted for the protection of workers, clients or the public should not violate human rights laws.

With respect to privacy, asking an employee for their inoculation record is not tantamount to asking them if they have clinical depression, as some have suggested. The former is directly relevant to whether the employer is able to maintain a safe workplace, stay open, and help manage a public health crisis. The latter is not. 

As long as the virus remains a legitimate threat buttressed by aggressive government action, a mandatory vaccination policy is not only justifiable but eminently prudent. The details of such policies and their application to specific workplaces and employees should be canvassed with an experienced employment lawyer.  

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