Like most employment lawyers, I have been getting calls from employers asking whether they can require employees to get vaccinated for COVID.
It is a much discussed issue in legal circles and no consensus has evolved. At least one arbitrator has upheld a mandatory vaccination policy, Seneca College has implemented a policy (which will likely be challenged), and the federal government is currently considering such a policy for over 1M employees. Surprisingly—at least to me—the Ontario government has shown no interest in introducing such a policy in hospitals and long-term care facilities where our most vulnerable are located.
An employer is required to balance its obligations to provide a safe work environment and its obligations to respect an employee’s privacy, human rights and other rights.
Fully vaccinated employees have a much lower risk of getting seriously ill or being hospitalized but they can get the virus and they can pass it on. So for the time being whether or not vaccines are required an employer should consider other mitigation measures like physical distancing and masking in an indoor workplace.
Personally I don’t currently have a problem with mandatory vaccination policies which are introduced to prevent the spread of COVID subject to the employer’s duty to accommodate on the basis of disability, religion or any other prohibited grounds. The duty to accommodate a disability is subject to the undue hardship test, and one factor that is taken into account is health and safety requirements. In this regard, we are on the verge of a fourth wave because of the highly contagious Delta variant and an employer has an obligation to provide a safe workplace under the Occupational Health and Safety Act. Although possible, I don’t think many judges would consider the imposition of such a policy to be a constructive dismissal unless the issue of vaccination had arisen earlier in the employment relationship and the employer had agreed to waive vaccination requirements.
Some employees are very concerned they will get COVID and give it to their parents and/or children. Fully vaccinated parents—perhaps with underlying or chronic health conditions—can still get COVID, and children under 12 years old are not currently eligible for vaccination. Some of these employees will not return to work unless all employees are vaccinated because they will not put their loved ones in (potential) harm’s way.
Because people who choose not to get vaccinated are more likely to get seriously ill, they are therefore more likely to use sick credits, short-term disability benefits and/or long-term disability benefits, and are more likely to have ongoing medical claims because of chronic illness caused by COVID. These are costs the employer must bear because an employee chooses to put themself at a greater health risk.
For employers who believe that mandatory vaccination is too heavy handed, they can impose additional mitigation measures on employees who choose not to get vaccinated. One such measure is taking a rapid test before entering the workplace. At the moment, this mitigation measure may not be practical for cost reasons, but if an employer is moving to a remote/in-office working model where an employee is required to come into the office 2 or 3 days a week, then this mitigation measure may be an interim solution to address this controversial issue until case numbers dramatically decrease or increase.
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