In the third wave of the COVID-19 pandemic, it is easy to be discouraged by how little has changed in a year. The pandemic continues to have significant and devastating effects on individuals and businesses.
The announcement late last year that two vaccines were approved for use in Canada and the approval of a third one in February was a sigh of relief. However, as vaccines become available to more individuals, employers once again find themselves venturing into unknown territory with little guidance from the Ontario Government. Specifically, many employers are now considering whether they can and should implement mandatory vaccination policies.
As of this writing, the Ontario Government has strongly encouraged everyone to receive the vaccine but has stopped shy of making vaccination mandatory. This leaves employers in the unenviable position of having to make decisions about how, if at all, to broach the issue of vaccination in their individual workplaces without any legislative guidance.
When determining whether or not to implement a mandatory vaccination policy, employers must first understand that they cannot force an individual to receive the vaccine. Instead, a mandatory policy would subject employees who have not received the vaccine to additional workplace requirements and/or restrictions. For example, employees who have not been vaccinated may qualify for or be placed on a leave of absence, be transferred to remote work arrangements, be required to continue wearing personal protective equipment, practice physical distancing even after it is no longer legally required, and/or undergo regular COVID-19 testing. What specific requirements or restrictions may be appropriate will depend on the type and nature of the workplace in question.
While mandatory vaccination policies can be devised and implemented in a number of ways, employers should consider a number of associated risk factors and legal obligations before deciding whether a mandatory policy is right for their workplace.
Employers’ Obligations under the Occupational Health and Safety Act
Under occupational health and safety legislation, employers are required to take all reasonable steps to protect the health and safety of their workers and workplaces. Over the past year, we have seen employers implement a number of measures including, but not limited to, mask requirements, physical distancing, pre-entry screening, and testing protocols. Many of these measures have also been legally mandated in most regions across the country. Arguably, a mandatory vaccination policy could be implemented to meet an employer’s overarching health and safety obligations.
Privacy and Human Rights Concerns
Enforcing mandatory vaccination policies requires the collection of personal health information, which raises privacy and human rights concerns. Under normal circumstances, an employer’s access to personal health information is limited. It is currently unclear whether such a disclosure requirement could reasonably be enforced in any given workplace. As with mandatory vaccination policies generally, the reasonableness and enforceability of any such requirement will likely depend on the nature of the workplace and the surrounding circumstances, among other factors. Therefore, any policy that involves the collection of personal information, be it a mandatory vaccination policy or otherwise, should be carefully drafted to ensure compliance with any applicable privacy legislation.
Additionally, some employees may be restricted from receiving the vaccination due to disability, religious reasons or another ground protected under the Human Rights Code (the “Code”). A mandatory vaccination policy should account for an employer’s duty to accommodate to the point of undue hardship under the Code to avoid potential discrimination claims.
There are many unknowns when it comes to vaccinations and vaccination policies. We do not know how long vaccination protection will last, whether an annual booster shot is required, and what, if any, long-term effects may manifest. Mandatory vaccination policies in the context of the COVID-19 pandemic have yet to be adjudicated. Therefore, the full extent of associated risks and liability to employers is presently unknown.
Generally speaking, the implementation of a mandatory policy may trigger the following:
- Grievances in the unionized context;
- Constructive dismissal claims in the non-unionized context;
- Allegations of invasion of privacy and human rights violations;
- Workers’ compensation liability for injuries or harm sustained in the event negative side-effects are experienced from the vaccination; and
- For public sector employers, challenges may also be made under the Canadian Charter of Rights and Freedoms.
Will a Mandatory Vaccination Policy Be Upheld?
As stated above, mandatory vaccination policies in the context of the COVID-19 pandemic have yet to be adjudicated in Canada. However, there is a body of arbitral case law that has developed in the healthcare sector which deals primarily with mandatory vaccination policies in the context of influenza vaccines. These decisions do provide some, albeit limited, guidance.
What is clear from existing arbitral decisions is that a person’s freedom to make choices regarding their own body is afforded the highest degree of protection. As such, mandatory vaccination policies have only been upheld where there is a real and justifiable connection to a significant and demonstrable risk to employee, client, and/or patient health and safety.
Where mandatory influenza vaccination policies have been the topic of litigation, the results have been mixed. Adjudicators’ decisions in those cases have turned on a number of factors, which include:
- The nature of the workplace;
- The degree of vulnerability of the population served;
- The extent of the infectious outbreak;
- The efficacy of the vaccination; and
- The availability of other less intrusive means of protection.
While these cases provide some insight into what factors may be relevant when assessing the reasonableness of a given vaccination policy, it is important to bear in mind that they were all decided in the context of the healthcare sector.
Furthermore, as we now know, there are considerable differences between influenza viruses and COVID-19. Notably, we are in the midst of a global pandemic. The severity and communicability of the coronavirus is significantly greater than the influenza virus, especially with the new variants spreading through Canadian communities. The COVID-19 vaccine has also been shown to be considerably more effective than influenza vaccinations.
These distinguishing features may ultimately benefit employers who are interested in implementing a mandatory vaccination policy, particularly those whose businesses involve dealing with vulnerable populations. However, it is far from certain whether such policies will be upheld, particularly for workplaces operating outside the context of the healthcare sector.
Hurry Up and Wait
Employers are keen to manage employee expectations and implement vaccination policies before vaccines are available to the general public. However, time will tell whether mandatory vaccination policies will even be necessary. The immunization rate resulting from voluntary vaccination remains unknown as we are currently prioritizing vaccinations for certain members of society. If voluntary uptake of the COVID-19 vaccine is significant among the general public, considering inoculation in the context of the workplace may become a less pressing issue.
Given the potential liabilities and unenforceability of mandatory vaccination policies, it may make sense for employers to hold off on implementing such policies until more information becomes available.
Additionally, it is important to note that while the Ontario Government has not mandated COVID-19 vaccinations yet, it remains within the Government’s authority to do so. In Ontario, certain immunizations are already required in specific workplaces under the Child Care and Early Years Act (see O. Reg. 137/15, section 57), the Long-Term Care Home Act, 2007 (see O. Reg. 79/10, section 229) and the Ambulance Act (see O. Reg. 257/00, sections 6 (h) and 14(d)). In the federal sector, the Food and Drugs Act also mandates immunization for workers employed in the manufacturing of certain vaccines (see C.R.C., c. 870, section C.04.071).
As such, we may see a change in government officials’ stance on the topic of COVID-19 vaccinations as time goes on, and as employers continue to call upon the government to provide direction on this evolving issue.
Employers may have good reason to implement mandatory vaccination policies but doing so may expose them to potential liabilities that have yet to be adjudicated. There are a number of considerations and competing rights to consider including, but not limited to, the safety of workers and the workplace, an employee’s right to privacy, an employer’s duty to accommodate, and existing employment contracts and collective agreements. Therefore, employers who implement mandatory vaccination policies should prepare themselves for the fact that it may become the subject of legal challenge.
For many employers, particularly those whose business is not focused on dealing with vulnerable populations, whose workplace presents little or no risk of viral transmission, or where the risks associated with a mandatory vaccination policy are simply too costly, educational and incentive programs may be viewed as preferable courses of action.
Following the Ontario Government’s example, employers may wish to forego mandatory policies and, instead, encourage employees to receive the vaccine by way of educational initiatives that focus on the individual and communal benefits of the vaccine. Some employers may even wish to pair such educational campaigns with incentive programs designed to further motivate uptake among their workforce. Such incentives may include prizes, draws, or monetary rewards. Employers should ensure, however, that any incentive programs are designed to comply with human rights legislation, as well as any applicable public sector wage restraint legislation.
ABOUT THE AUTHOR
Natalie Garvin is an associate at Filion Wakely Thorup Angeletti LPP, a boutique management-side labour and employment law firm. Natalie provides advice and representation to private and public sector employers in all areas of labour and employment law, with a focus on labour relations (including construction labour relations), human rights issues, and collective agreement interpretation. Natalie also assists clients in drafting employment contracts, managing accommodation requests, and implementing workplace policies.
During the COVID-19 pandemic Natalie has attempted to teach herself guitar and tennis and is slowly catching up on all the popular TV shows she missed years ago.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.