Following the
Although the details vary, employer vaccine mandates require employees to be vaccinated against COVID-19 as a condition of in-person work. But do employers have the right to impose such mandates? What if employees refuse? What if there are medical reasons why an employee cannot receive a vaccine?
Imposing Vaccine Mandates
As mandatory government and public health restrictions begin to ease, employers will feel pressure both internally and externally to ease their own restrictions. Inevitably, the easing of restrictions without a plan will give rise to a variety of risks in relation to COVID-19. As government has taken a hands-off approach in requiring vaccinations thus far, employers must determine for themselves if and how to incorporate vaccines into their COVID-19 health and safety plans. But what is an employer's right to mandate vaccinations?
Given the novelty of this issue, we have yet to see case law pertaining specifically to COVID-19. However, in mandatory vaccination and testing cases involving influenza and other contagious illnesses, adjudicators and courts have applied a "balancing of interests" approach to assess the reasonableness and enforceability of the mandatory policy.
This requires the weighing of (1) the employer's obligations under
In each
Under OHS legislation, employees also have a right to refuse unsafe work. At present, it is uncertain how a work refusal based upon potential exposure to COVID-19 in the workplace will be decided. This is particularly so where an employee will be exposed in the workplace to those who do not have the protection of the vaccine. However, a similar question came before the Canadian Labour Relations Board in 2006:
In Cole v
One wonders if this may have been decided differently in the 'post-COVID' period. Not only is the social-distancing requirement greater for COVID-19 than it was for SARS, but the awareness of the dangers of infectious disease is much more acute now than before.
Employee Privacy and Human Rights
On the other hand, arbitrators and Courts have recognized that an individual's bodily integrity is accorded the highest degree of privacy protection. At common law, any medical procedure carried out on a person without the person's consent is considered battery. Because of this, an employee generally cannot be compelled to submit to vaccination without the employee's consent or a contractual or statutory right of the Employer to insist on employee immunization.
Further, reasonable accommodations must be made where individuals are medically unable to receive a vaccination (e.g., masks, social distancing, work from home and etcetera). This is because under human rights legislation, employers are prohibited from discriminating against employees on a number of grounds, including disability. Where an employee is able to show that they have a disability, the employer must make efforts to accommodate that employee to the point of undue hardship.
If implementing a mandatory vaccination policy, employers need to be cautious when acquiring information relating to immunity or vaccination status, both at the individual level and within the workforce generally. Information about employee immunity or vaccination status constitutes employee medical information. Employers must therefore ensure that there is a process in place which accords with accepted practices and legal requirements.
Overall, the employer must consider and balance:
- The nature of the workplace.
What aspects of your business create a risk of spread of COVID-19? Assess your workplace for likely sources of COVID-19 infection and spread.
- Degree of contact with vulnerable populations.
What would be the impact of COVID-19 spread in your workplace? Could it also effect third parties?
- What is an effective response to the risks identified?
Vaccines are proven effective. What other alternatives might also be effective, including for those who may require accommodation? For example:
- Masks/PPE
- Regular testing
- Paid vacation time
- Paid/unpaid leave
- Return to work upon proof of immunity
Consult with health experts and your
- Employee Privacy.
Never discuss an employee's health situation with another employee without consent and always ensure employee health information is protected. Federal employers should look to the Personal Information Protection and Electronic Documents Act (PIPEDA) and its employee information provisions.
When implementing a vaccination policy, employers should remember that each workplace will be different, and an individual assessment should be performed. What might be right for one workplace may not work for another. Although a policy at one workplace may be challenged and upheld, that does not mean that same policy will be upheld in another workplace. Employers must be aware of their obligations, the rights of their employees and the challenges associated with implementing a vaccination policy.
Footnote
1. Cole v
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.
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