Can Employers force Covid-19 vaccination on Employees?

While provincial and municipal governments have guidelines in place for employers to help slow the spread of COVID-19, the responsibility lies with employers to enforce the safety protocols in the workplace, which may include mandatory vaccination policies. Whether due to personal beliefs or anxieties about the pandemic or COVID fatigue, employers may encounter resistance from employees.  In these cases, the employer may be found liable if something were to happen such as an outbreak among employees/customers or an unfortunate death due to community spread within the workplace.

Ensure you have clear policies in place

In a recent grievance case (Trillium Health Partners v CUPE Local 5180, 2021 CanLII 127 (ON LA)), a hospital worker ignored employer protocols and verbal requests to do otherwise and brought pizza into the facility for a party with other union members. The social gathering also violated Trillium Health Partners’ safety protocol and restrictions implemented during the COVID-19 pandemic.  In a separate incident, using forceful language and profanity, the same hospital worker intervened in defence of an outside contractor who insisted on entering the hospital without a mask. He was dismissed as a result of his misconduct.

In this case, the labour arbitrator overturned the dismissal, saying it was too harsh. However, the arbitrator also indicated that another transgression would justify the worker’s dismissal.

Throughout the pandemic and the varying levels of economic shutdown, it has not been uncommon to find employees not wearing masks properly (if at all). There are also times where employees are not following other safety protocols such as social distancing or frequent and thorough cleaning.  In the case of Trillium Health Partners, the arbitrator indicated that it was important for employers to ensure protocols are being followed, but that a single or even two incidents may not warrant immediate dismissal. Employers should create COVID-19-related policies that clearly lay out what happens if an employee is found to have violated the safety protocols in place.

Know your rights and know your employees’ rights

In another grievance case (Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada, 2020 CanLII 100531 (ON LA)), the Union challenged the reasonableness of a unilaterally imposed policy requiring all staff at a retirement home to be tested for COVID-19 every two weeks.  The Union made reference to alcohol testing cases whereby the court had found that, under the collective agreement, random alcohol testing was unreasonable as the rule outweighed the impact on employees’ privacy rights.  The Union conceded that the employer would be justified in testing an employee only if they were symptomatic.

The judge found that controlling COVID-19 spread is not the same as monitoring the workplace for intoxicants as intoxicants are not infectious.  And while the privacy intrusion is arguably comparable in both cases, the need for COVID-19 testing as compared with alcohol testing is not.  This is because COVID-19 is highly infectious and often deadly for the elderly, especially those who live in contained environments.  The adjudicator concluded that, even though the testing policy is not perfect and may be of limited value to the individual employee tested, it is of high value to the facility; and a positive test is of immense value to both the employee and the retirement home.  The grievance was dismissed.

How does this affect potential mandatory COVID-19 vaccination policies?

With the introduction of vaccination, and as it becomes widely available across Canada, employers will need to consider if they are within their rights or if it is even necessary to impose a mandatory COVID-19 vaccination policy.  In light of the Caressant Care Retirement & Nursing Homes case, mandatory policies in healthcare environment will likely be upheld.  It may also be reasonable in workplaces where social distancing is difficult, such as manufacturing and construction.

Some may draw analogies to compulsory student vaccination in the public school system, with limited exemptions for medical reasons and religious beliefs. However, for many workplaces such as office environments, the question is:  Can an employer discipline or terminate employees if they refuse to take the vaccination without good reason?  The answer will depend on various factors. For example, in the workplace, are employees required to interact with each other and/or customers, or are there  employees and customers who are in the high-risk group, etc.

According to government guidelines laid out in the Infectious Disease Emergency Leave (IDEL), an employer could put an employee on unpaid leave for reasons related to COVID-19, which could include concerns that the individual might expose others to COVID-19.  An employer could, in this case, instruct the employee not to return to work until they have been vaccinated due to health and safety concerns.  Whether the employer can insist on employee vaccinations depends on the particular workplace.

Ultimately, it all comes down to what is considered a reasonable action taken by employers to stop the spread of a highly contagious virus; and weighing the intrusion to employees’ rights against the effort to control spread of the virus and the seriousness of a workplace outbreak.

If you are looking to create appropriate COVID-19 policies and safety protocols within your workplace, but you are unsure of how the government guidelines should be interpreted or whether your current policies leave you liable as an employer, contact HUM Law today Call us at (416)214-2329 or

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