By Sydney Hull
The Covid-19 vaccine rollout is speeding up, bringing with it an important question: Can employers require employees to receive a covid-19 vaccination?
The answer to mandatory workplace vaccination, at least at this point, is a qualified “No.”
However, in high-risk workplaces, such as healthcare, warehouses, or meat-packing plants, employers may be justified in requiring mandatory vaccines.
Since Covid-19 vaccinations have only recently become widely available in Canada, the issue of mandatory vaccination has not yet been discussed by courts or labour arbitrators. As the rollout continues, courts and arbitrators will likely be called on to enforce, or decline to enforce, mandatory vaccine policies.
The issue of mandatory workplace vaccination raises several legal responsibilities.
Employers have a duty to take reasonable precautions to protect employees’ health and safety. Under human rights laws, employers also have a duty not to discriminate against employees on the basis of disability, religion or other grounds. Often, this means accommodating employees with protected status under human rights law to the point of undue hardship. Employers must also comply with privacy laws and other employment and labour laws.
These duties have the potential to conflict with one another. In pre-Covid-19 mandatory vaccination cases, and cases considering Covid-19 testing, courts have balanced these competing interests to determine if the employer’s policy is reasonable.
It follows that the enforceability of mandatory vaccines will depend on the particular workplace and risks involved in an employee’s job.
Mandatory vaccine policies are more likely to be upheld in healthcare and other high-risk settings; however, in lower-risk environments, or where there are alternatives to vaccination, a blanket vaccination requirement may be struck down.
For example, in a job where the risk of transmission is low and can be mitigated by masking, maintaining distance, working from home, etc., requiring all employees to receive a Covid-19 vaccination may not be justified.
It has also been recognized that Covid-19 is unique and different from influenza and other communicable diseases. Covid-19 is more contagious, its symptoms can be more severe, and vaccines are more effective in preventing hospitalization and death.
To balance the competing interests in low and medium-risk environments, employees who cannot receive a vaccine for legitimate human-rights reasons must receive workplace accommodations. These accommodations must be decided between the employer and employee on a case-by-case basis.
In addition, where possible, alternatives should be available to employees. These may include the option to wear a mask, maintain social distance, undergo regular covid-19 testing, work from home, or to take an unpaid leave of absence until herd immunity is achieved.
Any information disclosed to an employer by an employee about their vaccination status, like all other personal employee information, must be treated confidentially by the employer.
This article is for information only and is not intended to be legal advice. If you are an employee, employer, union, etc. with questions about mandatory vaccination in your workplace, you should contact a lawyer.