Every day, Canadians are learning more about the regulatory approval and rollout of new COVID-19 vaccines. For many employers, this raises new questions about transitioning their workplaces back to "normal" including whether employers can require that employees get vaccinated against COVID-19. To take some of the guesswork out of your decision making, we have highlighted key decisions, summarized your obligations as an employer, and outlined key considerations moving forward.
The Law Says...
While COVID-19 may be novel, this is not the first time that the question of mandatory vaccination in the workplace has arisen. In the unionized healthcare sector, arbitrators have repeatedly been asked to weigh in on hospitals implementing vaccine and/or mask policies, with mixed results.
In 2013, a BC hospital implemented a policy requiring employees to either receive the annual flu vaccine or wear a mask to reduce the risk of influenza. The Hospital Employees' Union grieved the mandatory policy on the basis that it violated both the collective agreement and the BC Human Rights Code. The arbitrator found that there was clear evidence establishing that the immunization of healthcare workers helped reduce the transmission of influenza to patients. The arbitrator further emphasized that the policy gave employees the choice of either getting the vaccine, or wearing a mask, and also contained specific accommodations for individuals who conscientiously objected to immunization. It was accepted that while the policy affected an important employee privacy right, that requiring employees who refused vaccination to mask was not unreasonable given the relatively low degree of intrusiveness. The arbitrator ultimately dismissed the grievance and upheld the policy.
In contrast, in 2018 an Ontario arbitrator struck down a very similar policy, which was also designed to curb the spread of influenza, at a Toronto-area hospital. The main hurdle the policy ran into was the arbitrator's conclusion that there was insufficient evidence that wearing masks prevented the spread of influenza. Without this direct link, the arbitrator concluded that requiring employees who were free of symptoms to wear masks was unreasonable. Another factor working against the policy was that both prior to and following its introduction, the hospital continued to experience influenza outbreaks.
More recently, in November 2020, the union at an Ontario retirement home grieved a policy which mandated that all staff participate in ongoing COVID-19 surveillance testing via nasal swab every two weeks. The policy contained a generous accommodation provision which stipulated that all employee challenges or concerns with the policy would be addressed on a case by case basis. The arbitrator upheld the policy, concluding that while nasal swabs were an intrusive measure, that the policy's goal of preventing the spread of COVID-19 in the retirement home reasonably justified it. This decision does not concern vaccinations, however, it does suggest that arbitrators appreciate the risk posed by COVID-19 and may be willing to adopt an approach that favours workplace safety over individuals' privacy rights. How the courts view the matter remains to be seen.
As the arbitrators highlighted in the cases above, assessing the reasonableness of a mandatory vaccination policy in the workplace requires assessing and weighing a series of competing obligations.
All British Columbia employers are required by the Workers Compensation Act to maintain a safe workplace for its employees. This obligation must be balanced against competing rights and protections that employees have under privacy legislation and the BC Human Rights Code. In particular, section 13 of the Human Rights Code prohibits discrimination against an individual in the course of their employment based on what are referred to as the "prohibited grounds" of discrimination, which include sex, race, religion and mental or physical disability.
While understanding employer's obligations and the applicable case law provides some insight, the reality is that there is significant uncertainty around what mandatory COVID-19 vaccination policies in Canadian workplaces can and will look like. What we can say is that what will be acceptable will depend greatly on factors such as whether your workplace is unionized, whether your employees interact directly with members of the public and whether your industry is considered an essential service.
Based on the relevant case law, to have a chance of withstanding scrutiny, a mandatory vaccination policy must establish a tangible connection between the vaccination and a reduced risk of COVID-19 transmission. It is important to note that what is acceptable for one workplace may not work for another – a mandatory vaccination policy for a workplace that's employees are working remotely is not going to fly, but one in an essential service may. To that point, employers with workforces that can work remotely will have a harder time justifying a mandatory vaccination policy. A policy will need to be clearly communicated to employees and consistently enforced. Finally, as the vaccination becomes more widespread and, hopefully, transmission risks subside, what was initially an enforceable policy may no longer be so. It will be crucial for employers to ensure periodic reviews of the necessity and terms of any vaccination policy during the pandemic.
Lastly, any policy must recognize that there are exceptions to every rule, and specific carve outs should be made for any individual who cannot comply with the vaccination requirement for reasons connected to the prohibited grounds of the Human Rights Code. This may include individuals unable to comply due to a physical or cognitive disability, or a religious requirement.
Unprecedented situations like this will naturally lead to unexpected questions and issues. Two of the questions that we are most frequently being asked by employers are:
- How do we obtain proof that an employee has been vaccinated?; and
- Can we terminate an employee for refusing to comply with a mandatory vaccination policy?
If an employer requires employees to submit proof of vaccination, then any information received must be treated as confidential. Presuming the vaccination policy is defensible, an employer will only be entitled to the minimum amount of medical information necessary to confirm that the employee has in fact been vaccinated. Some Canadian provinces such as Ontario have announced that vaccinated individuals will be provided with a proof of vaccination certificate – employers with defensible vaccination policies would likely be within their rights to request documentation of this nature, but should not request any information that is not reasonably necessary to ensure compliance with the policy, which can create privacy issues and give rise to human rights concerns.
Whether failing to comply with an enforceable vaccination policy will justify discipline up to termination of employment has yet to go before the courts. While we have seen occasional examples of the courts upholding for cause terminations in the event of serious safety policy violations, provincially-regulated employers in BC with enforceable mandatory vaccination policies will likely have to terminate employees who refuse to get vaccinated or otherwise comply with a mandatory vaccination policy and do not have a legitimate (e.g. human rights protected) basis to do so, on a without cause basis. For federally-regulated employers, additional consideration will be critical before terminating any non-management employees with at least twelve months' service, given such employees cannot be terminated absent "just cause" or elimination of their function.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.