There is no better tool to help prevent the spread of COVID-19 than a vaccine. Vaccines currently approved for use in Canada are highly effective in preventing or minimizing COVID-19 symptoms and, perhaps more importantly, appear effective in avoiding hospitalization or critical illness.
However, no one can force another to undergo medical treatment without consent or statutory authorization.
Our governments do not appear willing to pass legislation mandating vaccination in private employer workplaces. The preference is to encourage vaccination on a voluntary basis.
How do vaccines play a role in safe return to work policies and conditions of employment moving forward?
“Subject to human rights considerations there is no reason employers can’t ask new employees to provide proof of vaccination status as a condition of employment,” explains Rishi Bandhu, Labour and Employment Law specialist at Bandhu Law. “In a pre-pandemic world, though, employers did not think to include a term or condition of employment based on vaccination status. Therefore, existing employees present a more complicated situation.”
“Non-unionized employers who unilaterally change terms and conditions of employment risk facing actions for constructive dismissal. The test is, briefly stated, whether the unilateral change is substantial in the eyes of a reasonable third person. The assessment is contextual and looks at all of the relevant circumstances.”
Right to Bodily Autonomy
“Historically, a forced medical examination has been considered an assault or battery. Hence, a condition of employment imposed by an employer to vaccinate against COVID-19 would undoubtedly represent a significant change to the employment relationship”
The common law jealously guards an individual’s right to make decisions about matters involving medical treatment and bodily integrity. Cases from the Ontario Court of Appeal and the Supreme Court of Canada indicate that individuals have the fundamental right to determine what may be done, or not done, to one’s body.
“Historically, a forced medical examination has been considered an assault or battery. Hence, a condition of employment imposed by an employer to vaccinate against COVID-19 would undoubtedly represent a significant change to the employment relationship,” adds Bandhu.
In the unionized setting, labour arbitrators have historically invalidated employer policies that would require an employee to take a flu vaccine or remain out of the workplace without pay during a period of flu outbreak. Policies requiring employees to vaccinate against the flu, or wear a mask, have also been declared invalid.
COVID-19, though, as we know, is not the flu.
Changing Expectations and the new normal
A recent arbitration decision may signal a greater willingness to accept encroachments into an individual’s bodily autonomy in the name of containing COVID-19. “In late 2020, an arbitrator found that a mandatory bi-weekly COVID-19 testing regiment was reasonable, despite the highly invasive nature of the test, which caused persistent nose bleeds for at least one employee,” says Bandhu. “The decision undoubtedly reflects the severity of the COVID-19 pandemic and the exceptional measures that have been undertaken to minimize spread of the virus.
“The same factors are likely to be persuasive in assessing whether a mandatory vaccination requirement gives rise to a valid constructive dismissal claim in the non-unionized context.”
While the privacy and security interests of employees are central to the analysis, the employer’s safety obligations are also critical. Employers have an obligation under health and safety legislation to take every reasonable precaution for the protection of workers. Since March 2020, employers have significantly modified their workplaces to meet the duty and mitigate the spread of COVID-19.
Bandhu explains that a key concern with mandatory vaccine policies is human rights law. “Possible human rights objections to vaccination could include religious or disability related concerns, including allergic or other adverse reactions to a vaccine. In those circumstances, an employer would be expected to accommodate, unless it can be demonstrated that the vaccination is a bona fide occupational requirement and accommodation of the employee’s refusal to vaccinate would be impossible.”
The team at Bandhu Law sets out that an employer considering implementing a mandatory vaccination policy in the workplace would be well advised to considering the following factors:
The nature of its operation
Long term care homes, for example, are likely to be afforded more leeway in the measures they choose to protect against the virus. A policy of mandatory immunization in a workplace where physical distancing is possible and interaction with members of the public can be kept to a minimum is less likely to pass scrutiny. Where remote working is a possibility, mandatory vaccination may be more difficult to justify.
The consequences for failing to vaccinate
Employers who impose termination of employment as a penalty for failing to vaccinate are more likely to face and be liable for constructive dismissal. Unless human rights principles are at play, the employer may terminate by providing lawful notice of termination and severance pay.
Confidentiality and privacy
Employees should be assured that any health information collected about them will be limited to the individuals who require it.
Flexibility and accommodation
Ultimately, to mitigate the risk of liability, the safest course of action for employers electing to require vaccination throughout a workforce is to avoid mandating termination of employment for non-compliance. A temporary, non-disciplinary leave of absence is more likely to be considered reasonable. A remote working assignment, if feasible, presents the least risk. COVID-19 will disappear as a pandemic in time, so temporary solutions are less likely to be assailed. Employers must be open to objections that are based on religious or disability related grounds and prepared to accommodate accordingly.
Respectful and Empathetic Communication
The employer’s existing policies, communication practices and foundation of trust with employees are critical to avoiding issues. Employers who maintain flexibility, together with open and respectful communication that occurs well in advance of any implementation deadlines, are more likely to avoid legal issues.
COVID-19 has changed expectations in ways that could never have been anticipated. Employers will continue to be given leeway to introduce policies that protect the workplace, but will face potential liability if those policies, including the manner of introducing them, are coercive and poorly communicated.
Like most legal issues, there are no easy answers to the question of whether or not an employer can require vaccination as a condition of work. What is clear, though, is that the answer will depend on the employer’s imposed consequence for refusing to vaccinate. For more information, contact Bandhu Law Professional Corporation at 905-849-0025 or email email@example.com.