With the distribution of the COVID-19 vaccine well underway, many Canadian employers are thinking about introducing vaccination policies into their workplace, raising the question “Are mandatory vaccination policies even legal?”
There is currently no federal or provincial legislation in Canada requiring mandatory COVID-19 vaccination for all employees, nor is any such legislation expected. Occupational health and safety legislation at both the federal and provincial levels, however, do require that employers protect their workers from health and safety risks in the workplace.
While Canadian employers are not legally required to mandate vaccination, it is not illegal for employers to introduce mandatory vaccination policies, subject to some important considerations and limitations.
Unions can challenge an employer’s right to introduce policies by filing a “grievance.” In these circumstances, an arbitrator has the power to determine whether the policy is a reasonable exercise of the employer’s management rights under the collective agreement.
While there has been no arbitration decision on mandatory COVID-19 vaccinations, arbitrators have, in the past found mandatory flu vaccines to not be reasonable in all circumstances. More recently, arbitrators have ruled that a mandatory testing policy was reasonable in a case that we recently argued, which may signal that arbitrators might be prepared to uphold reasonable vaccination policies.
Human rights legislation across Canada prohibits discrimination in employment on certain grounds, including disability, sex and religion, any of which could potentially justify an employee’s refusal to vaccinate. Where a refusal is based on a justifiable human rights ground, the employer will be required to accommodate any such refusal to the point of “undue hardship.” Forms of accommodation could include working remotely from home or situation-specific masking, hygiene and distancing protocols in the workplace. A policy that does not address and offer accommodation will violate human rights legislation, resulting in the potential for litigation and resulting damages and costs.
Employees may offer medical evidence substantiating their refusal to vaccinate on the grounds that it would be harmful to their health due to a particular health circumstance or a medical condition. Enforcement of a mandatory vaccination policy in these circumstances could be either a wrongful dismissal or human rights violation (or both), resulting in the potential for litigation and related damages and costs.
A “constructive dismissal” occurs when an employer unilaterally changes fundamental terms of an employee’s employment, and it gives the employee the right to leave their employment and to claim damages for wrongful dismissal. Some employees may try to take the position that imposition of a mandatory vaccination policy amounts to a constructive dismissal.
Where an employee refuses to vaccinate for reasons other than a “protected” medical or human rights ground, the employer has the option of lawfully terminating employment. A refusal to vaccinate would not likely constitute “just cause,” however, and the employer would likely have to comply with its obligation to provide the employee with notice of termination or payments instead of notice. In the union context, the employer’s right to terminate employment might be further affected by the terms of the applicable collective agreement.
Employers in environments serving vulnerable persons will be the ones most likely to consider mandatory vaccination policies. Next would be employers in industries that are public-facing or involve large groups of people.
Implementation of any mandatory policy will have to be considered carefully and in the context of all of the above considerations.
Where an employer concludes that a mandatory vaccination requirement is either unnecessary or unreasonable in the circumstances, there continue to exist alternatives to mandatory vaccination, including recommended vaccination, masking and distancing protocols, and testing and self-isolation requirements.
Where to start
Every business is different and not all businesses will need (or want) a mandatory vaccination policy. If your business is considering a vaccination policy, you first need to assess the transmission risks in your particular workplace and determine whether mandatory vaccination is a reasonable requirement, or otherwise, whether alternatives to mandatory vaccination would be adequate to protect the health and safety of your employees and the public.
Peter Straszynski is a partner with Torkin Manes LLP and a member of the firm’s Cannabis Law Group, assisting industry employers with all of their employment law needs. He can be reached at (416)777-5447 or email@example.com.