The media informs us of increasing numbers of Canadians who are receiving COVID-19 vaccines.
Others are not yet eligible, or decline, to do so.
There are no indications that the vaccines will become mandatory.
Can an employer require its employees to receive a covid-19 vaccine?
The short answer in Canada is in most cases, probably not.
By reason of the occupational health and safety (OH&S) provisions in the Workers Compensation Act, employers must exercise due diligence to ensure the health and safety of:
(i) all workers working for that employer, and
(ii) any other workers present at a workplace at which that employer’s work is being carried out.
These considerations must generally be assessed on a case-by-case basis.
But, depending on the circumstances, an employer that attempts to mandate vaccinations for its staff may be opening up a can of worms.
There is no legislative basis for dismissing an employee for just cause for not being vaccinated.
Any employer who does so risks a wrongful dismissal claim.
If an employee’s reluctance to vaccinate is related to a characteristic protected by the Human Rights Code, such as a disability or religious considerations, additional obligations apply to employers, including prohibitions on discrimination and a duty to accommodate.
Dismissing such an employee for not being vaccinated may result in a human rights complaint.
The employer may be required to demonstrate why becoming vaccinated was a legitimate job requirement. This may include advancing evidence that receiving a vaccine is more effective in reducing deaths caused by COVID-19 as compared to other measures such as physical distancing, masking and hand washing.
Even requiring employees to disclose whether they have been vaccinated can be fraught with issues.
Employers who pry into an employee’s reasons for not vaccinating may create various human rights, privacy and employment-related issues for themselves.
Employers are not permitted to ask certain questions unless it is necessary to do so due to a legitimate job requirement.
Should questions be warranted, an employer must limit its questions to necessary areas and not impinge on employee’s privacy or tread into areas protected by human rights law.
Any information obtained through such inquires could for various reasons worsen an employer’s legal position.
An employer who unilaterally changes an employee’s terms of employment risks a constructive dismissal claim. Any changes to an employment contract must be carefully considered.
An employer who is able to establish through evidence that vaccination is a legitimate job requirement, who accommodates those who are not vaccinated due to disabilities, religious reasons or other protected grounds, and who notifies employees sufficiently in advance in writing may consider requiring employees to be vaccinated. Though this is very tricky ground.
There is also always a potential that some individuals may experience adverse reactions to a vaccine.
Some are concerned that the vaccines have been approved too quickly without adequate testing.
Some remember the Canadian experience with thalidomide. Just last month, a lawsuit was filed against the federal government claiming that thalidomide survivors’ rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms were violated.
In many cases, employers who wish to see their employees vaccinated are better off offering incentives to employees to vaccinate.
For example, some employers are offering bonuses.
Others are offering their staff time off with pay to become vaccinated. Saskatchewan has amended its OH&S regulation to include a paid special vaccination leave. Other provinces are considering similar steps. While these changes require an employer to allow time off to be vaccinated, they do not require employees to take that step.
If you are an employer, think carefully about the possible ramifications, and have your evidence in order, before potentially requiring your employees to vaccinate.
If you are an employee whose employer is pressuring you on this or any other issue, become informed and know your rights.
About Susan Kootnekoff:
Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children.
Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law.
She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, Alta.
Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013,
Susan moved to the Okanagan with her family, where she currently resides.
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