That is the question most asked by employers since the federal government announced that Health Canada has approved the Pfizer-BioNTech vaccine and that Canada will receive up to 249,000 vaccine doses in December 2020. These doses are part of the up to 76 million doses Canada has secured through its existing agreement with Pfizer.
Employers are now asking whether they can insist that employees are vaccinated before returning to the workplace.
Unfortunately, you will have conflicting responses to the question from legal experts.
For example, according to a piece in the Toronto Sun on the subject, employment lawyer Howard Levitt of Levitt, LLP stated,
This is therefore advocating that employers could make the COVID-19 vaccine mandatory before an employee can return to the workplace.
This is a far stretch. It stands that employers under occupational health and safety legislation across Canada must take every reasonable measure to protect employees and patrons. Employers also have an obligation to provide a safe work environment. If a vaccine is available and works, would it become a reasonable measure to require employees to be vaccinated, and if they refuse to do so, could their refusal lead to termination with or without cause? If the refusal is based on human rights grounds such as a disability or religious beliefs, it is doubtful.
In another interview with HRD Canada, Toronto-based employment lawyer Stephen Wolpert says—in the context of the workplace—employers have no right to compel workers to take any kind of medication or vaccination.
This seems to be more reasonable.
Employers may be able to enforce restrictions on those who refuse to receive a vaccination but may not be able to lawfully force vaccination on someone against his or her will. But will such restrictions be considered in keeping with human rights legislation or even privacy legislation? An employer would also have to be careful not to accidentally cause a constructive dismissal by unilaterally worsening the terms of employment for employees who do not obtain a vaccine.
Employers should also remember that the COVID-19 vaccine is newly developed, and both the true effectiveness and long-term side effects remain unclear. Public perception of the vaccine is mixed, and employers, despite the arrival of the vaccine, still need to balance these concerns and continue to promote all methods of ensuring an employee’s health and well-being, including social distancing, work-from-home when applicable, use of face masks and sanitizing.
Employers should carefully consider the practical reasoning for making vaccination mandatory and whether it is considered to be proportionate and justifiable when balanced against the likely negative impact on employee relations and possible human rights claims. It is possible that in some sectors like health care, a requirement to be vaccinated could be justified in line with the role. However, the vast majority of employers are unlikely to be able to argue that taking this step would be proportionate and necessary. Employers would need to carry out the specific risk assessment for the role to consider whether a COVID-19 vaccination requirement would be required as opposed to other COVID-19 safety measures that have already been adopted and proven to work. There would also be the associated risks of reputational damage to be considered.
There is a lot we still need to learn before a position on such a question can be formulated. We will keep you updated.
However, what is discussed above is purely dealt with in a non-unionized context and the application may be different in a unionized environment. Only time will tell. So what happened in the unionized context that may apply to mandatory vaccination?
In a recent grievance arbitration argued and reported by Torkins Manes, the arbitrator was presented with a union’s challenge to the employer’s policy that all staff at its retirement home be tested for COVID-19 once every two weeks. The policy being challenged involved the nasal swab test.
According to Torkins Manes, the union argued that the policy:
- Was an unreasonable exercise of management rights, and in essence, amounted to mandatory surveillance testing.
- Did not accomplish its purpose as it only measures potential infection at one point in time and that an employee who tests negative today can be infectious tomorrow.
- Was not required given the fact that the employer had put into effect substantial safety procedures (including PPE) and there was no evidence of any positive cases in the home.
- Was not required given the residents of the home were not required to be tested, the testing itself was of limited utility and did not prevent infection for the employee being tested.
Unfortunately for the union, Torkins Manes reported that