Each day, we become one step closer to having access to a COVID-19 vaccine in Canada. While many of us are anxiously waiting for the opportunity to inoculate ourselves, not everyone is interested or able to receive the vaccine. This forms the basis of an employer’s latest predicament: can I force my employees to be vaccinated?
The short answer? Most likely no, you cannot force your workers to receive a vaccination based on the current state of the law.
However, this novel situation may trigger rights and obligations in overlapping areas, notably, occupational health and safety and human rights (as well as privacy).
What about workplace health and safety?
In Ontario, the Occupational Health and Safety Act (“OHSA”), requires employers to provide a safe work environment. Section 25(2)(h) broadly states that an employer shall “take every precaution reasonable in the circumstances for the protection of a worker”. Traditionally, employers considered their OHSA obligations when it came to appropriate employee training, personal protective equipment, and well-functioning tools/machinery. In our current landscape, there is no doubt that OHSA would also apply to infectious diseases such as COVID-19.
Under OHSA, could an employer argue for their employees to be vaccinated so that the employer can meet its duty to create a safe work environment? Not exactly.
Requiring an employee to get vaccinated is not the same as requiring an employee to wear a hard hat and steel-toed boots. Getting vaccinated is a personal health decision that should require an individual’s informed, free, and voluntary consent.
Also, the safety and effectiveness of a vaccine for everyone is not a black-and-white issue. This statement is not to give any ammunition to “anti-vaxxers”, rather, it is to emphasize the fact that the vaccine may not be right for everyone. For example, we do not know if it may be less effective for persons with certain comorbidities, nor can we say that it will be 100% safe regardless of any personal condition such as allergies or a disability.
Even still, an employer can strongly encourage all their employees to get vaccinated. Offering incentives for vaccination should be done with caution. An employer cannot treat those who received the vaccine more favourably or unilaterally worsen the terms of employment for those who refused the vaccine. This could create both human rights liability and the risk of a constructive dismissal claim.
Vaccination and human rights laws
Human rights laws are of a special nature in that they generally take precedence over other laws. That means that federally, the Canadian Human Rights Act, and in Ontario, the Human Rights Code, are more powerful than other statutes (unless these statutes explicitly say otherwise). The reason for this special status is because these statutes deal with critically important issues relating to providing equal rights and opportunities without discrimination.
What this means is if someone refuses the vaccine based on grounds that are found in human rights legislation, the employer cannot discipline or terminate the employee for their refusal. Instead, the employer has a duty to accommodate the individual up to a certain point.
The two main protected grounds that are likely to arise in the context of a vaccine is religion/creed and disability. An individual may not be permitted to receive a vaccine under their sincerely held religious beliefs or they may be unable to receive the vaccine for disability-related reasons.
If an employer disciplines or terminates the employee for their refusal to vaccinate based on a protected ground, its actions could amount to a human rights violation.
An employer should consider what practices it can impose to balance its obligations to create a safe workplace environment and accommodate the employee. This involves an exploration of solutions that may be workable for the employee such as: continuing to work from home, wearing masks and other personal protective equipment in the workplace, utilizing plexiglass, practicing physical distancing, among other potential solutions.
Consequences of an employee refusing the vaccine based on preference
Where an employee refuses the vaccine based on preference, the employer still would not likely have the grounds to terminate the employee for that reason, unless they choose to dismiss without cause and provide the associated termination and severance entitlements, and is not based on discriminatory reasons. Terminating an employee for cause is not easy to do as establishing cause is challenging – it is a fairly high standard to meet. Remember that federal and/or unionized employees can generally only be terminated for cause.
In such a situation, an employer should work with the employee to see if there is a reasonable solution that allows the employee to continue working but also allows the employer to meet its obligations in relation to workplace safety.
There is also some uncertainty about whether certain types of employers may be able to terminate an employee for not being vaccinated where there is no valid reason for their stance. For example, high-risk settings such as long-term care homes may find that it is an occupational requirement for staff who work directly with vulnerable populations to be vaccinated. Whether such an argument will succeed in law remains to be seen.
Remember, an employer has the ability to terminate an employee at any time without cause, provided that it is for non-discriminatory reasons and that sufficient notice is provided.
Can things change?
Even though this is the state of the law at the moment, things can quickly change. We all have witnessed the sweeping changes the government imposed in response to this pandemic with the introduction of new laws and daily announcements.
The government’s current position is that the COVID-19 vaccine is voluntary. This remains the case for high-risk settings such as long-term care facilities and hospitals. There is also no law proposed at the federal or provincial government mandating COVID-19 vaccination.
However, the government could always draft legislation to the contrary. Importantly, where any such legislation is drafted, legal challenges would likely ensue filed as any legislation mandating vaccinations seems to run afoul of the Canadian Charter of Rights and Freedoms.
Recent cases that have been filed at courts and administrative tribunals also have the potential to change the legal landscape. As these cases make their way through the legal system, they will provide important guidance and set precedents on this uncharted area.
Lastly, there are service providers that have the power to set their own rules. Many private companies may require a proof of vaccination in order to provide service. Such social pressure from places such as airlines, restaurants and the like will influence persons who are able to vaccinate to do so.
With all these moving parts, a lot remains to be seen as we all live through these strange times together.
Blogging for Achkar law is Christopher Achkar, founder and principal of Achkar Law. Since being called to the bar in 2016, Christopher works with employers regarding all their HR Law needs at multiple levels of court, including tribunals such as the Human Rights Tribunal of Ontario, the Canadian Human Rights Commission, the Ontario Labour Relations Board, and the Workplace Safety and Insurance Board.