Should employers make COVID-19 vaccines mandatory?

A few weeks ago, Prime Minister Trudeau announced that anyone who wants a COVID-19 vaccine can likely get one by September 2021. In Ontario, stage one of the vaccination roll-out is well underway with almost 12,000 doses of COVID-19 vaccines administered daily.

Interestingly, a recent KPMG survey found that nearly half of the Canadians surveyed questioned the safety of the various COVID-19 vaccines, although the survey also found that eight in ten Canadians would still line up for a shot within the next three months if it were offered to them.

Most employers will want their workforces to be vaccinated, but requiring vaccinations will be challenging under our current laws. Even asking an employee whether they have been vaccinated could give rise to privacy concerns, and Ontario laws generally protect employees from being compelled to share medical information, including whether they have been vaccinated. In addition, it is exceptionally rare for an employer to legally compel a medical procedure or intervention. While few would doubt that we are living in exceptional times, it is unlikely that blanket policies mandating vaccination will be upheld.

These concerns have left many employers wondering whether and how they can ensure their employees are vaccinated. We’ve discussed some strategies and their legal implications below.

Legal obligation

Under occupational health and safety laws, employers have an obligation to rid the workplace of hazardous materials and protect employees from work-related illness and injury. This means that employers in Ontario must take steps to limit the spread of COVID-19 and other infectious diseases. At the very least, this will justify employers strongly encouraging their employees to be vaccinated and taking reasonable steps to prevent the spread of COVID-19 by employees who are known to be unvaccinated (e.g., continuing to maintain physical distancing, mask use, etc.).

Can we terminate the employment of those who refuse to get the vaccine?

Terminating or disciplining employees who refuses to get vaccinated may lead to a wrongful dismissal or constructive dismissal claims. However, an employer may decide that a severance package for wrongful dismissal is worth the cost to protect their other employees from COVID-19.

Employers must be more cautious with employees who refuse to get the shot for a legitimate medical or religious reason. Pregnancy, breastfeeding, likelihood of a severe allergic reaction, severe anxiety, or religious beliefs are all relevant considerations under the Human Rights Code. If the employee’s refusal to vaccinate is based on human rights grounds, then the employer has an obligation to accommodate the employee to the point of undue hardship.

Can we mandate vaccinations?

Mandating employees to get the shot can expose the employer to significant liabilities including,

• discrimination based on religious grounds, disability, or sex (pregnancy or breastfeeding)
• intrusion upon the employee’s privacy
• exposure from an adverse reaction the employee may have to the vaccine.
• low morale amongst employees whose moral beliefs have been infringed upon.

Several employers in the past, particularly in the healthcare sector, have implemented policies requiring nurses to get the flu-shot and wear masks while on duty. On many occasions the employer was successful in upholding these policies at arbitration in both British Columbia and Ontario.  More recently, however, in 2018, Arbitrator Kaplan in St. Michael’s Hospital and The Ontario Hospital Association v. The Ontario Nurses’ Association struck down the hospital’s policy to have nurses wear unfitted surgical masks during their work shift if they chose not to vaccinate against the common flu.  After a review of expert evidence, the arbitrator favoured the opinion of the ONA’s experts that the policy would not materially change influenza rates in the hospital.   Given that COVID-19 is a different virus than the regular influenza, with different rates of infection and a much greater rate of death, the court or tribunal’s treatment of COVID-19 will likely differ from Arbitrator Kaplan’s reasoning when addressing the seasonal flu.

In order for a vaccination policy to be held enforceable, it must be “reasonable in the circumstances”. This means that employers must assess the nature of the work and the level of risk associated with the transmission in the workplace. For example, the risk in the health-care sector would be considerably more than in the IT sector where majority of the employees can work remotely.

Whether a vaccination policy is enforceable will largely depend on the nature of work. In absence of concrete facts showing a legitimate need, and evidence of risk, a vaccination policy will likely be unenforceable.

However, in workplaces where mandatory vaccination policies are not appropriate, a Safe Return to Work policy or a COVID -19 policy can have a significant impact. Workplaces should implement reasonable, consistent, and clear policies that educate, encourage, and promote safe practices to limit the spread of COVID-19, including vaccinations.