With the COVID-19 vaccine now widely available across Canada, the issue of mandatory vaccinations for the workplace is no longer a hypothetical discussion.  Many employers in the United States have implemented such policies, and the Equal Employment Opportunity Commission has stated that U.S. businesses can mandate employees become vaccinated.

The majority of Canadian adults have been partially vaccinated (one dose of COVID-19 vaccine).  80 percent of Canadians said they would agree to get vaccinated if their employer required them to do so.  Yet, most employers are still hesitant to implement mandatory vaccination policies.

As workplaces re-open without mandatory vaccination laws, employers are juggling employees who refuse to work with others who are not vaccinated, and others (in the significant minority) who refuse to be vaccinated. Sometimes, vaccination is refused on legitimate human rights grounds, but also because they believe the pandemic is a hoax or the vaccine is dangerous or experimental despite Health Canada’s approval. Employers are concerned about their legal duty to take all reasonable precautions to protect the health and safety of all their workers, and their duty to accommodate those workers who refuse to vaccinate based on medical or religious grounds.

How would an employer implement a policy requiring employees vaccinate against COVID-19, and what should it look like?

Vaccination Policy

Creating a vaccination policy touches on many complicated legal issues, and employers could unknowingly infringe on employees’ rights. Though each workplace must be assessed on a case-by-case basis, most workplaces where employees work closely together can likely withstand legal scrutiny of a mandatory vaccination policy, but that policy must allow for some refusals.

To date, both governments and employers have been largely hesitant to make vaccinations mandatory.  In what could be a harbinger of other similar employer initiatives, the Ontario government made an announcement regarding long-term care homes on May 31, 2021. By July 1, all long-term care homes must have a vaccination policy requiring all employees to provide proof of full vaccination or a medical exemption. If not, then the employee would be required to take an educational program on the benefits of vaccination. Other employers have created incentives for employees to become vaccinated.

Any vaccination policy, whether mandatory or incentive based, needs to allow for refusals based on medical grounds or religious beliefs, and the same right to refuse is required even where incentives are offered. Refusing because an employee is pregnant is not a legitimate ground, but may be if there is also a medical reason. Employers need also be mindful of employees’ right to privacy with respect to their personal health information, including vaccination status. The need to ask for vaccination status must be tied to a legitimate workplace purpose (such as health and safety requirements in that particular workplace) and there is no other less intrusive way of achieving the same purpose of health and safety.

Can an employer terminate an employee due to breach of vaccination policies? 

Some workplaces may require a COVID-19 vaccine as a bona fide occupational requirement, such as in workplaces where employees cannot work from home. In this case, accommodating an employee who has refused a COVID-19 vaccine based on a prohibited ground of discrimination would create undue hardship on the employer. The employer must then determine if termination is appropriate. In these cases, it is important that employers consult an employment and human rights lawyer to ensure compliance with Ontario’s Human Rights Code.

Absent a refusal premised on a prohibited ground of discrimination, employers can likely require a COVID-19 vaccination as a pre-requisite to attend work. If an employee has refused vaccination because they are “anti-vaxxers”, and are not protected by human rights legislation, an employer can terminate that employee, as employers have an obligation to protect their other employees. However, there could also be considerations related to the employee’s contractual and privacy rights. This will create complexities when confronted with an employee who has refused vaccination due to an “anti-vaxxer” stance.

Conclusion

Vaccination policies are complicated, and the current political climate has only complicated them further. Employers must be cautious if implementing a mandatory or incentive-based vaccine policy. Some employees will have justifiable reasons for refusing a COVID-19 vaccine, while others will not.

If you need clarification or assistance with a vaccination policy, contact Hum Law to guide you through each step.

We encourage you to contact Hum Law immediately for legal assistance on all your workplace matters.

Call us at (416)214-2329 or email info@thehumlawfirm.ca

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Updated August 27, 2021