With the rise of mandatory vaccination policies across Canada, many municipalities have questioned whether they can – or should – implement similar policies for their employees.
Municipalities located in Saskatchewan are asking: Do we have the authority to implement mandatory vaccination policies? What are the risks? This blog briefly reviews the answers to these questions.
Please note that the information contained in this article is specific to municipal employees and does not consider whether municipalities may require councillors or contractors to vaccinate.
Authority to Implement a Vaccination Policy
Municipalities may implement a mandatory vaccination requirement for their employees by:
- establishing an internal vaccination policy as an employer; or
- passing a bylaw implementing a vaccination requirement.
Like all employers, municipalities are subject to The Saskatchewan Employment Act (the "SEA") and related Regulations. This includes a duty to ensure the health, safety and welfare of their employees and to take reasonable precautions to maintain a safe working environment. Notably, the Government of Saskatchewan has recently enacted regulations that allow employers to "opt-in" to a vaccinate-or-test policy for this reason. Municipalities may choose to fulfill these duties through a mandatory vaccination policy.
Municipalities may also gain authority to implement a mandatory vaccination policy through bylaw. Municipalities have a general authority to pass bylaws where practical for the safety, health and welfare of people and the protection of people and property: s. 8(1)(b), The Municipalities Act, SS 2005, c M-36.1, The Cities Act, SS 2002, c C-11.1, and The Northern Municipalities Act, 2010, SS 2010, c N-5.2. Correspondingly, municipalities have the power to regulate, prohibit, or respond to developments, activities, industries, businesses, "or things in different ways." However, no court has yet considered whether these general provisions extend to authorize regulation of municipal employees or of specific medical issues.
The relationship between municipalities and the provincial or Federal Government poses a potential setback. Municipalities may only pass bylaws on matters within their jurisdiction, and only to the extent those do not conflict with provincial or federal laws. A municipality's COVID-19 vaccination bylaw has the potential to be challenged on this basis.
Risks of Mandatory Vaccination Policy
When considering implementing a mandatory vaccination policy, municipalities should consider the following potential risks:
- Human rights – Employers cannot discriminate on the basis of prohibited grounds, and must accommodate to the point of undue hardship. Depending on the circumstances, mandatory vaccination policies may be found to violate these requirements.
- Charter – Municipal actions may be challenged under the Canadian Charter of Human Rights. Potential grounds to challenge a mandatory vaccination policy may include that it infringes the rights to liberty or security of the person, the freedom of conscience and religion or the right to equality under the law.
- Privacy – Privacy legislation protects personal health information, which may include whether a person is vaccinated or not. Municipalities must comply with applicable privacy legislation in relation to this information and may face privacy complaints or civil lawsuits.
- Employment – Implementing new policies in a workplace is not without risk. Employees may claim that a policy is unreasonable, or that they have been constructively dismissed. Municipalities with unionized employees also face different challenges if implementing a mandatory vaccination policy depending on, among other things, the governing collective bargaining agreement.
- Liability for adverse effects – Depending on the circumstances, municipalities who require vaccinations may be liable for any side effect experienced as a result of vaccination.
These risks are not exhaustive and we strongly recommend that municipalities considering mandatory vaccination policies seek legal advice specific to their circumstances.
Takeaways for Municipalities
Ultimately, there are numerous unique considerations for municipalities when determining whether to implement a mandatory vaccination policy. Municipalities are encouraged to seek legal advice when determining whether to do so, and in considering how to best address these legal considerations.
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.
