To date, Canada’s federal and provincial governments have not introduced any legislation which would require all eligible individuals to be vaccinated against COVID-19. However, would a mandatory vaccination policy introduced by an employer be legally enforceable? If employees refuse to get vaccinated, would an employer be justified to prohibit the employee from attending at the workplace, to place them on an unpaid leave of absence, or to terminate their employment or otherwise discipline the employee? In addressing this issue, there are two competing interests.
Health and Safety Concerns of Employers
On the one hand, an employer must take reasonable steps to maintain a safe working environment. This includes taking measures to protect its employees from contracting COVID-19. For example, employers must follow the current public health advice with respect to physical distancing, masking, and daily COVID-19 screening of employees. An employer may argue that since the evidence demonstrates that all approved COVID-19 vaccines in Canada are highly effective at reducing one’s chances of contracting the virus, and have a low risk of causing serious side effects, requiring all employees to be vaccinated is a reasonable step to prevent a COVID-19 outbreak in the workplace.
Human Rights and Privacy Concerns of Employees
On the other hand, the Ontario Human Rights Code prohibits employers from discriminating against employees based on several grounds, such as disability and religion, up to the point of undue hardship. For example, if an employee is unable to be vaccinated for medical reasons, the employer would have an obligation to provide a reasonable accommodation to the employee. Examples of such accommodations would include permitting the employee to work from home, or permitting the employee to attend at the employer’s premises, provided that they physically distance and/or wear a mask at all times.
Further, some employees may not wish to disclose their vaccination status to the employer, on the basis that this information constitutes personal health information. An employee’s vaccination status does likely constitute personal health information under privacy legislation. However, requesting that an employee disclose their vaccination status in the interest of maintaining a safe and COVID-19 free workplace may be permissible, as long as the employer has a policy in place which sets out why the information is being collected, how the confidentiality of the information will be protected, who will have access to it, the purpose for which it will be used, where it will be stored, and the period of time for which it will be kept by the employer.
Which will prevail?
The courts have not yet addressed the issue of whether mandatory vaccination policies will be enforceable. It will likely depend on the type of workplace and the job duties of the employees in question.
In an office setting, employers will likely be able to accommodate most employees who refuse to get vaccinated on the basis of a protected Human Rights Code ground. For example, employees may be permitted to work from home, to work in a relatively isolated area of the office, and/or be required to wear a mask. Where such accommodations would be reasonable, an employer would likely not be justified in terminating or otherwise disciplining an employee who refused to get vaccinated.
However, a mandatory vaccination policy for health care workers at retirement homes or hospitals, who generally cannot work from home, is more likely to be enforceable. Many patients at hospitals and elderly residents would be considered “high risk” if they contracted COVID-19 and would be vulnerable to contracting the virus from an unvaccinated employee with whom they would be in regular contact. Physical distancing is likely not possible at all times and in many cases, wearing a mask would be insufficient protection for other employees, residents, and patients.
In a situation where an employee makes a personal choice not to get vaccinated for a reason that would not be protected by the Human Rights Code (such as general vaccine hesitancy or belief in conspiracy theories), in certain workplaces the employer may be permitted to place the employee on an unpaid leave of absence until the pandemic has ended or even terminate the employee for failing to comply with the employer’s vaccination policy.
As we continue to gain scientific knowledge about COVID-19 and its variants of concern, the effectiveness of the various COVID-19 vaccines, and their possible immediate and long-term side effects, the enforceability of mandatory vaccination policies is likely to change. On the one hand, if certain COVID-19 vaccines prove to be even more effective than previously thought of preventing serious and/or fatal cases of COVID-19, then mandatory vaccination policies will be more likely to be held enforceable. On the other hand, if the vaccines ultimately prove to be less effective than initially thought, and/or they can be linked to more severe side effects, mandatory vaccination policies will be more likely to be held unenforceable.
The courts will eventually be required to determine where to draw the line between the health and safety concerns of employers and the human rights and privacy concerns of employees. Each case will be determined on its specific facts.
If you have more questions about your employment law or human rights matter contact Marty Rabinovitch at 416-446-5826 or firstname.lastname@example.org