Not clear employers can, or should, make vaccination mandatory


GET VACCINATED OR ELSE. Or else what?  That’s the question that hangs over the heads of workers as more and more employers require their workers to be fully vaccinated against COVID-19. There is no clear answer.

It is clear employers big and small can, and are, making covid vaccination mandatory. But, can they make it stick?

The City of Toronto, for example, announced a vaccine mandate for all their employees on August 19. However, the announcement did not stipulate what action the city might consider, or take, against workers they could not convince to get fully vaccinated.

Termination not a consideration

It is also clear that if requiring vaccination is the law there is no question: workers will have to abide by the law or face the penalties set out in the law, which could possibly include getting fired.

Quebec and Ontario have such laws for specific occupations. The federal government is considering one. However, nobody is talking about firing workers if they don’t comply.

All employers, of course, have the right to fire any worker, at any time, for anything. The catch is that firing a worker “with cause” opens the employer to the possibility of legal action from the fired worker claiming protections under the labour standards act or human rights laws.

A post on the Spring Law website, a Canadian firm practicing exclusively in the areas of employment, labour and human rights law warns: “threatening employees who refuse to be vaccinated with termination is hardly a risk-free fix.”

No legal precedent

Ottawa employment lawyer Paul Champ says the problem for employers is that there has yet to be case put forward to set a precedent.

“We do have some guidance from case law from about 20 years ago with SARS,” said Champ. “And in those cases, labour arbitrators held that an employer cannot mandate vaccines.”

The question now, he said, is if COVID-19 would be seen as a bigger threat than SARS. Courts would also likely have to look at the particular circumstances of any given workplace, he added.

Champ said he expects cases will come forward, and employers could make arguments that vaccines are necessary for both reasons of occupational health and safety and productivity — for instance, if an employee had to travel somewhere where being vaccinated was a condition for entry.

On the other hand, workers could make arguments against mandatory vaccination based on privacy and other rights — especially if there is no medical reason for refusing a vaccine.

“I think any employer could set that policy,” Champ said. “But they should do so knowing that there’s a reasonable chance they’ll be legally challenged.”

Employers must tread lightly

Shane Todd, an employment law partner at Fasken Martineau DuMoulin LLP, said employers have been mulling this issue over since at least January, many approaching it with “trepidation.”

There are many considerations that go into a good workplace vaccine policy, Todd said, including how to accommodate workers who choose not to get vaccinated based on grounds protected by human rights legislation. Accommodations could include daily or weekly rapid testing or limited permission to continue working from home.

Other factors employers need to consider are whether to require proof of vaccination or ask employees to attest to their status, how to handle workers’ privacy rights when dealing with sensitive medical information, and how to respond to workers who simply refuse to get vaccinated.

Unions are also playing a role in advocating for employers to accommodate unvaccinated workers while trying to ensure safe workplaces for other employees.

Public support for employers

A July 20 poll from the Angus Reid Institute shows that 61 per cent of Canadians support mandatory proof of vaccination in the workplace, as reopening brings more and more workers back into the workplace.

Daniel Safayeni, vice-president of policy for the Ontario Chamber of Commerce, wants the feds to step up with a nation-wide policy providing hard answers on whether or not businesses can ask their employees to provide proof of vaccination and what they should do when workers decline.

Without that guidance, says Dan Kelly, president of the Canadian Federation of Independent Business, most small businesses are reluctant to enforce their own vaccination policies. He notes that Manitoba is rolling out proof of immunity cards complete with QR codes and Quebec has announced plans to introduce its own vaccine passports this fall.

Heather MacDougall, is an expert on how Canada’s vaccine policy has evolved. She says the question of mandatory vaccination with the COVID vaccine is premature because we really need to make sure that we have all the vaccine we need  to get to the countries that are still really suffering and “to reach the people that have had no shots or just one shot in this country.

“And frankly, until that’s done it, it seems to me that thinking about making something mandatory and opening that political can of worms is, as I said, premature.”

Historically, the issue of mandatory vaccination in Canada has triggered not only debate but violent protest and rancorous political division.

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