Facing the challenge of mandatory workplace vaccination policies

By Tony Poland, LegalMatters Staff • Workplace COVID-19 vaccination policies appear to be the way of the future so it is important for employers to understand their rights and responsibilities, says Toronto employment lawyer Ellen Low. 

Many businesses across the country have announced mandatory vaccinations for their staff. Last month, Toronto Public Health recommended city employers draft vaccination policies to protect their employees and the public from coronavirus.

Days after that, the provincial government amended the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020  to include a subsection that states: “The person responsible for a business or organization that is open shall operate the business or organization in compliance with any advice, recommendations and instructions issued by the Office of the Chief Medical Officer of Health, or by a medical officer of health after consultation with the Office of the Chief Medical Officer of Health.”

As the debate over the right to refuse vaccinations rages on, Low, principal of Ellen Low Employment Law, says it’s important to remember that you don’t have to get the shot. However, you might lose your job. And employers can refuse to implement a policy but if it is a matter of law, there could be consequences.

‘There is always a choice’

“There is always a choice. An employer doesn’t have to put a policy in place. However, it could become a matter of facing a financial penalty,” she says.

Low says what options an employer has If somebody refuses to get vaccinated or tested for the virus is a question that is coming up more frequently.

“Can you require people to get vaccinated? The short answer is yes. We have some labour board decisions dealing with the flu vaccine. We also have a recent judgment dealing with mandatory testing,” she tells LegalMattersCanada.ca. “Can you force somebody to get a vaccine? No, because they may have a legitimate medical concern or an honestly held religious belief.”

Employment rights and obligations continue to evolve during the pandemic,  Low says, pointing to a labour arbitration ruling in June that found an employer was within their rights to implement a mandatory COVID test policy as an example.

“When one weighs the intrusiveness of the rapid test against the objective of the Policy, preventing the spread of COVID-19, the policy is a reasonable one,” writes arbitrator Robert W. Kitchen in his decision.

When it comes to a question of rights, Low references an economic theory that states “you are able to do whatever you want to do until it affects me.”

“That strikes me as pretty apt in the coronavirus environment,” she explains. “You can choose not to vaccinate but it also means you could be putting co-workers at risk. As an employer, you may have an obligation to do something about that.”

Workplace toolkit offers guidance on developing a policy

Toronto Public Health launched a workplace toolkit that includes guidance on developing a workplace vaccination policy. The health board recommends requirements that include:

• proof of a vaccination series approved by Health Canada or the World Health Organization
• written proof of a medical reason from a physician or nurse practitioner for unvaccinated workers that includes whether the reason is permanent or time-limited
• a duty by unvaccinated workers to complete a vaccination education course on the risks of being unvaccinated in the workplace.

“Supporting your employees to get vaccinated is the best way to help protect them from the risks of COVID-19, prevent outbreaks in workplace settings and build confidence for a safer return to work as we continue living with this virus in our community. This is why I’m strongly recommending that local employers establish a workplace vaccination policy to protect workers, their families and our communities,” says Toronto’s Medical Officer of Health Dr. Eileen de Villa.

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Protests have sprung up across the country, including in front of hospitals, as those opposed to vaccinations demand what they consider to be their constitutional rights. There’s even the question of whether someone is entitled to demand proof of vaccination. 

“That’s an interesting issue. Can you ask somebody about their vaccinations status or is that a violation of their privacy? We’re still working this out,” says Low.

Business owners can find themselves caught in the middle of the debate, she says.

‘There are privacy, negligence considerations’

“From the employer perspective we have to balance their Workplace Safety and Insurance Board obligation to protect people who enter onto their premises,” says Low. “There are obviously privacy considerations. There are negligence considerations.”

It can be difficult to develop a workplace policy in a pandemic because “things are still in a serious state of flux,” she adds.

“There has been some discussion of whether the implementation of a mandatory vaccination policy is a unilateral change in the employment contract. Are mandatory vaccinations a breach of contract?” Low says. “As long as it is not discriminatory, you can fire anyone, anytime, for any reason as long as you are providing them with the termination and severance package with which they are entitled.”

Refusing to get a vaccination is unlikely to be cause for termination but what happens if an unvaccinated person also refuses to undergo regular COVID testing that is part of an employer’s workplace policy, she asks.

“There are also cases where people work with a vulnerable population, such as the elderly or children,” Low points out. “Then it could be a good-faith requirement that the person is vaccinated or that they are placed in a position where they’re not necessarily going to be in direct contact with the vulnerable.

“If you have a vaccination policy and someone says ‘no’ to a shot, you don’t have to continue to employ that person,” she adds. “But if that person has a medical or religious reason to refuse and you fire them, you will have to pay them an appropriate severance package. In my view, that will not be cause to terminate someone who does not want to be vaccinated.”

Low says there is still “much uncertainty on many issues.”

Staying apprised of the latest developments

“As employment lawyers, we are doing our best to stay apprised of the latest developments, political announcements and changes in best practices,” she says. “We are starting to see some decisions dealing with the pandemic and employment, but not every ruling will apply to every single situation.”

In the end, failing to have a policy is unlikely to be wise, says Low.

“What we don’t have information on yet is what happens if you fail to have a policy,” she says. “Can a business be forced to close until they have one?”

The Ontario government has mandated that businesses follow board of health recommendations and the board of health recommends having a policy, so an employer’s obligation should be obvious, Low says.

“The best defence is to do what the local health authority has advised is best practice,” she says. “People who have questions should definitely be consulting someone who specializes in this particular area of the law because it is a real intersection of privacy and employment rights, not to mention health and safety and human rights. All of these issues are complicated, so seek advice.”