The global COVID-19 pandemic has challenged the modern world with extraordinary issues, from government-enforced shutdowns, to mass layoffs, to border closures, and more. The promise of an effective vaccine is fueling optimism but it is also giving rise to new issues as employers undoubtedly ask whether they can require employees to vaccinate. The answer isn’t simple.
Canadian courts have not directly answered this question and they have certainly not considered it in the context of a global pandemic. As a starting point, employers have a duty to provide a safe workplace and may be inclined to mandate vaccination. On the other hand, employees are protected against discrimination and have the right to privacy. This may pose conflicts.
In the unionized environment, labour arbitrators have considered whether mandatory vaccination policies in the health or long-term care settings are reasonable and enforceable and their analysis provides us with guidance. In these cases, the outcomes have largely turned on the unique facts and expert evidence – whether there is sufficient evidence to demonstrate the seriousness of the virus, transmission of the virus from unvaccinated employees, transmission of the virus from asymptomatic or pre-symptomatic individuals, and the efficacy of the vaccine to prevent transmission. With sufficient expert evidence supporting the requirement for mandatory vaccination, the policy was held to be reasonable. Meanwhile, if there was scant expert evidence on these matters, then the policy was held to be unreasonable.
Along with the sufficiency of expert evidence, other considerations have come into play when determining whether the policy is reasonable or enforceable, including:
- The type of organization and the type of customers and individuals come into direct contact with the employees;
- The current state of the pandemic/outbreak;
- Balancing of employees’ privacy rights to their medical information with the employer’s duty to protect workers and others from harm;
- Degree of actual or perceived coercion, or on a similar note, whether there is a meaningful choice;
- The motive behind the introduction of a policy;
- Terms of the collective agreement or employment contracts; and
- The effectiveness and practicality of other measures such as social distancing, masking, working remotely, etc.
As we consider these decisions we must note the number of distinguishing features. First, these cases took place in health or long-term care settings at a time where there was no ongoing, global pandemic. Secondly, these policies were typically “vaccinate or mask” policies. Additionally, these cases involved influenza, which studies have shown, is less deadly and less contagious than COVID-19. Despite these qualifications, the analysis and conclusions are likely important considerations when determining whether a given employer can require their employees to be vaccinated at this time.
In addition, other issues may arise if mandatory vaccination policies are imposed:
- Human rights: Employers are required to accommodate employees who are unable to vaccinate for legitimate medical constraints or genuinely held religious beliefs. If an employee requests such accommodations, employers are entitled to ask for proof of medical exception or a statement of religious belief.
- Charter rights: Policies by government employers or policies sanctioned by the government may be subject to Charter scrutiny, in particular, s. 7 (right to life, liberty, and security of the person), s. 8 (right to be secure against unreasonable search or seizure), and s. 15 (right to equality).
- Privacy: The vaccination status of employees is personal information that engages privacy legislation and privacy laws. Thus, employers must ensure that its collection, use, disclosure, and retention of the information is limited and reasonable, and that safeguards are put into place to ensure the security of the information.
- Constructive dismissal: In the non-unionized setting, the unilateral implementation of a mandatory vaccination policy may constitute constructive dismissal if the policy is found to be a change that substantially alters an essential term of the employment contract.
Given these issues, employers should consider alternatives to a mandatory vaccination policy such as:
- Implementing alternative measures that are effective and practical for the workplace in question, such as physical distancing, wearing masks in public areas, allowing employees to work remotely, having a rotational schedule in the office, etc.
- Encouraging voluntary vaccination by communicating reliable scientific and educational information on the vaccine and the virus. (Employers should ensure that the information communicated is in line with that provided by public health officials.);
- Engaging with the union or joint health and safety committee to develop a strategy or policy;
- Allowing employees to take a leave of absence, without pay, if necessary.
If alternatives are unsatisfactory, the decision to implement a mandatory vaccination policy should be made in careful consideration of information available on the various strains of COVID-19, the efficacy and potential side effects of the different vaccines as they become available and the unique risks within each workplace. Consideration should be given to refusals on protected grounds and the possibility of accommodation to the point of undue hardship.
All of the above is heavily influenced by current legislation and health directives which are readily subject to change as the pandemic continues to unfold.