Unlike many other contagious diseases, in addition to being highly contagious, COVID-19 can be lethal.  Medical science, and our laws, have been in constant catch-up mode since the rapidly evolving COVID-19 first became a scourge in our lives.

Now that effective vaccines have been developed, a critical question many businesses are asking is:  Can we require mandatory COVID-19 vaccines for employees?  The quick answer is: Yes, if there are legitimate health and safety reasons for it.  The practical answer:  It depends. We encourage flexibility in assessing each situation because, for most of 2021, the answer is “no” until vaccines are widely available to anyone on demand.

Currently, due to high demand, the available supply of the COVID-19 vaccine in Canada is being rolled out gradually by provincial and territorial authorities. The reality for most Canadians is that the COVID-19 vaccine is not yet widely available. So the answer to the question of mandatory vaccination is less black and white and more nuanced. Employers need to consider a number of different factors before implementing any vaccine-related policies to protect both the business as well as the employees. It is important to evaluate all factors now to prepare for later stages in the COVID-19 vaccine rollout.

 

What are employers’ legal rights regarding mandatory COVID-19 vaccinations?

Employers have an obligation to maintain a safe workplace and to take all reasonable measures to ensure safety.  Following recommendations and guidelines of Ontario’s COVID-19 health guidelines or health safety protocols is one way for the employer to indicate that it has taken reasonable measures.

Where safety measures are required by the employer and an employee breaches them, a “for cause” termination might be justified.

Currently, public health authorities highly encourage people to get vaccinated, but it is not mandatory.  As such, employers may only strongly encourage employees in all workplaces to get vaccinated. Unless it becomes a general legal requirement for Canadians to be vaccinated, there may be no basis for requiring vaccination of those employees working at home or in a remote or private office and who commit to complete adherence to all COVID-19 Health guidelines.

That being said, mandatory vaccination may be legitimately required in some workplaces.  If challenged legally, mandatory vaccination would likely only be upheld where vaccinations are required because of the type of work performed, such as certain front-line positions; workers in long-term care homes, hospitals, or other critical care environments where employees are in regular contact with vulnerable health-compromised persons, or other types of employees who are customer-facing and customer-touching.

In such circumstances, employers can terminate the employee for cause for refusing or failing to be vaccinated, subject to any human rights issues that may arise such as medical or religious accommodation needs. In most cases, under the Ontario Human Rights Code, the employer has a duty to accommodate up to the point of undue hardship.

Depending on existing employment agreements and circumstances, an employer may have the right to shift an employee’s role so vaccination is not necessary without triggering constructive dismissal. This could involve a different position, implementing a work from home policy, or introducing more stringent physical distancing and masking policies.

 

What should employers consider before implementing mandatory COVID-19 vaccine policies?

Where a mandatory vaccination policy is concerned, employers should consider employee safety, workplace safety, and public safety. Any such policy implemented by an employer should take into consideration multiple factors.

Employment Agreements: While the pandemic has created a lot of unknowns, a well-written employment agreement will have proper termination and policy clauses built into it to protect both employers and employees. Employers should review all employment agreements to see how these types of issues are dealt with.

Human Rights Issues: If an employee’s vaccine-related wishes are protected under the Human Rights Code, the employer has a duty to accommodate to the point of undue hardship. Employers must be able to show they have done everything possible to accommodate before termination or they may be in violation of the Human Rights Code.

Reasonableness: The employer needs to consider whether a mandatory COVID-19 vaccination policy is reasonably necessary for those subject to it. For example, working from home or masking and physical distancing may suffice – especially in areas where the spread of the virus is low, creating lower general risk.

Government order or recommendation: For employers, following all government guidelines is the best rule-of-thumb. If government agencies issue a mandatory vaccination order, employers may have no choice but to comply. If there are merely recommendations, that is where a mandatory vaccination policy needs to be more flexible.

 

Can an employee refuse to return to the workplace and continue working remotely if they feel unsafe?

Employees cannot refuse to work due to a general risk, only if the specific workplace is deemed unsafe by an assigned government regulator. Employers may require employees return to work if they demonstrate the workplace is safe where COVID-19 is concerned. An employee who refuses to report to a safe workplace can be fired for cause with the loss of all termination pay and severance.

 

Do employees have the legal right to know if their colleague has previously contracted the virus or received the vaccine?

No. Employers do not have the right to divulge personal health information.

While the COVID-19 vaccine is not yet widely available across Canada, employers need to prepare for what is to come. The best way to limit liability while keeping employees safe is to evaluate all factors and develop policies ahead of time. Given the nature of the COVID-19 pandemic, this time to plan ahead should be used wisely. HUM Law can help you evaluate all factors and develop appropriate policies.

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