While governments grapple to secure the COVID-19 vaccine, it raises another important employment law question. Once vaccines are widely available, can employers require their employees to get vaccinated and, in turn, exclude from the workplace those who refuse? COVID-19 has already pushed the limits regarding management rights ( such as mandating masks, working from home, temperature checking and regular testing). It’s only a matter of time before the question of whether employers can require vaccinations comes before the courts. Like most things with COVID-19, the legal answer is unclear.
The question of mandatory vaccinations in the workplace is not entirely new. Historically, the question has arisen in the context of flu season outside of a pandemic specific to unionized health care workers. Specifically, decisions have considered whether a ‘vaccinate or mask’ (“VOM”) policy could be introduced whereby employees can either vaccinate or be required to wear a mask during flu season. Such policies have been upheld in Alberta and BC but not by Ontario arbitrators.
For example, a 2018 Ontario case involved such a policy at St. Michael’s Hospital, Toronto[1]. The VOM policy was disallowed in large part because the flu vaccine is of variable effectiveness year to year and there was not sufficient evidence that vaccinated or masked healthcare workers meant less patients contracted flu. In particular, the arbitrator noted the lack of evidence of asymptomatic transmission of the flu. That decision left the door open that, in different circumstances, the decision might be different.
On the other hand, a 2013 BC arbitrator upheld a similar VOM policy and found it was a legitimate exercise of management rights and was clear, unequivocal and reasonable[2]. Significantly, the arbitrator found the policy was not discriminatory because it gave the option of wearing a mask if someone did not want to be vaccinated.
It’s interesting to consider not only how the active pandemic would influence such decisions but also the fact that, due to the pandemic, masks have become a far more accepted norm. It’s feasible that a court today might err towards the BC decision on the basis that wearing a mask is not the imposition it might have been seen as pre-COVID-19. Furthermore, as knowledge of the efficacy of the COVID-19 vaccines develops and the asymptomatic transmission of COVID-19 is well-documented, the decisive issues in the Ontario decision may not apply at all.
As we have heard repeatedly, this pandemic is a game changer. Accordingly, the pre-COVID-19 case law is only so helpful. A potentially more relevant starting point might be to look at how decision-makers have responded to employers’ efforts to impose mandatory testing in the workplace during COVID-19. This analogy overlaps as not only being a health and safety measure that intrudes on personal bodily autonomy but also, significantly, taking place in the midst of an ongoing pandemic. Again, the decisions in this area are limited to the unionized context which are not binding on courts that might be considering the matter in the non-unionized context.
As recently as December 2020, an Ontario arbitrator upheld a policy of mandatory testing by nasal swab under which health care employees who refused were held out of service[3]. The Union relied on a Supreme Court decision that looked at an alcohol testing policy and held that the policy could only impose discipline if the need for the rule outweighed the impact on employee privacy rights. The arbitrator distinguished alcohol testing in light of the infectiousness of COVID-19 and found that, although knowledge of COVID-19 is developing, the infectiousness and risk to the care home employer’s residents outweighed the privacy risk. This, like other decisions that have addressed COVID-19 measures, suggests that COVID-19 and efforts to stop it will be treated differently. However, it should be noted that this case concerning a care home with elderly, vulnerable residents explicitly influenced the arbitrator’s decision to uphold the policy. It remains to be see how such preventative policies when dealing with less vulnerable populations will be received by labour arbitrators and the courts.
The bottom line? When it comes to the legality of mandatory vaccination policy, the answer is a firm “maybe”. However, it will not be long before decision makers are addressing the issue of mandatory COVID-19 vaccinations directly.
In the meantime, employers who are contemplating a mandatory vaccination policy should consider the following:
- Non-Mandatory Measures: before implementing a mandatory vaccination policy, employers should explore non-mandatory measures to encourage vaccination. This might include providing reliable information to address concerns of vaccination, providing on-site vaccinations during work hours or offering employees time off work to get vaccinated. Other, slightly more coercive but still reasonable, measures might include refusing to allow unvaccinated employees access to communal areas or work social events where social distancing might be more challenging or requiring regular proof of negative tests. With these latter measures in particular, any measures must be considered in line with what it reasonably required to keep employees and the public safe, not what is punitive to coerce vaccination.
- Current Government Guidance and Evidence: so far, the Ontario government has said it will not make the COVID-19 vaccines mandatory. While that doesn’t mean an employer cannot, any policy must be in line with the latest government position and evidence and updated regularly. For example, if the government’s position on who most needs to be vaccinated and with which particular vaccine develops, an employer would be wise to implement a policy that aligns with that advice and evidence.
- The Nature of the Workplace: as mentioned above, there is likely to be different judicial responses to mandatory vaccination policies based on the nature of the workplace. For example, healthcare or long-term care homes will be more easily able to argue for such a policy than an office space where most workers can work from home. Factors to consider include: the nature of the work done, direct contact with the public, the size and density of the workplace (i.e. how practical is social distancing) and other risks to the public arising from the workplace (e.g. a meat packing plant where COVID-19 could be transmitted to food being packed).
- Alternative Options: a policy would need to withstand criticism that it is not necessary and that other measures – such as masks or social distancing – could achieve the same result of preventing transmission. Providing reasonable, non-disciplinary alternatives to vaccination could preempt this criticism. For example, a VOM policy or option to work from home provides alternatives to vaccination as well as accommodation for those who cannot be vaccinated.
- Discrimination and Human Rights: similar to the above point on alternative options, the policy must provide accommodation for those who cannot get vaccinated, either for medical or personal reasons. Employers should consider the evidence needed to prove such an accommodation, being careful to only gather the medical information necessary and no more. As for personal reasons, there may be religious reasons for refusing to vaccinate but employers must be prepared to face challenges that are more political than religious. The Human Rights Code protects “creed” which courts have already held does not include political views about being controlled when it comes to mask by-laws. There are also exceptions to the requirement to accommodate based on the bona fide occupational requirements.
- Consequences: employers must consider what the consequences would be for employees who refuse to vaccinate or do an alternative to vaccination, and the implications of those consequences. For example, if the consequence is an unpaid leave of absence, the non-unionized employee might be able to make a case for constructive dismissal opening the employer to liability for termination and severance pay. One way around this might be reasonable advance notice of the new policy. Obviously this would not work for long term employees where such a notice period might be up to and above a year. But it is worth bearing in mind for shorter term employees or new hires. Alternatively, an employee could offer fresh consideration to obtain employees’ consent when the policy is introduced.
[1] St. Michael’s Hospital v Ontario Nurses’ Association, 2018 CanLII 82519
[2] Health Employers Assn. of British Columbia v. Health Sciences Assn. (Influenza Control Program Policy Grievance), [2013] B.C.C.A.A.A. No. 138.
[3] Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada, 2020 CanLII 100531 (ON LA)
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