The dilemma of mandatory vaccines

When COVID-19 vaccines started being distributed to the Canadian population, many employers were faced with the dilemma of whether they should require employees to get vaccinated. Ronald Minken, founder and managing principal at Minken Employment Lawyers in Markham, Ont., and Tejpreet (Tanya) Sambi, a lawyer with Minken Employment Lawyers, spoke with Canadian HR Reporter about vaccines and the workplace.

Q: Can employees be required to vaccinate?

A: “Well, the short answer is ‘It really depends.’ So far, certain jurisdictions, including Ontario, have mandated that certain industries, such as the health care industry, must have a workplace vaccination policy in place, which requires proof of either full vaccination, a medical reason for not getting the vaccine, or completion of an education course on vaccinations. If an employee does not provide proof of one of these things, then the employer can require them to undergo regular antigen testing for COVID-19. Some Ontario municipalities — such as Toronto, Ottawa and Peel — have effectively mandated a workplace vaccination policy for all employers, because the Reopening Ontario Act requires businesses to comply with recommendations from public health officials.

“Employers who aren’t required to implement a policy should keep in mind that if they choose to have one, it may not be upheld by courts or tribunals. The reasonableness of such a policy will likely turn on whether vaccinations are considered to be a reasonable precaution to protect workers from COVID-19. Another legal consideration is whether there is a bona fide occupational requirement for employees to be vaccinated — meaning it’s necessary for an employee to fulfil their job duties. For example, if you have a health care worker who is interacting with people with COVID-19, it may be a bona fide occupational requirement for them to be vaccinated so they can safely perform their job duties.”

Employers must ensure best practices to safeguard employees’ private medical information in vaccination policies, says another expert.

Q: Should employers mandate employees be vaccinated?

A: “Likely not, but again, it all depends. Many employers wrongly think that what has been mandated is the vaccination of employees. It’s only vaccination policies that have been mandated, and only in certain regions and select industries so far. In Ontario, for example, the Occupational Health and Safety Act says that the employer ‘shall take every precaution reasonable in the circumstances for the protection of a worker.’ The employer is not required to provide guarantees for the protection of a worker — its obligation is to examine the specific workplace circumstances and decide what reasonable precautions are necessary for that specific employee. These include personal protective equipment such as masks, social distancing, screening questionnaires (which are all mandatory), face shields, gloves, adjustments to the workplace to ensure physical distancing, installing workstation dividers and plexiglass in areas of high contact with other people, avoiding in-person interaction if possible, hybrid work, reassigning tasks, or regular antigen testing.

“As vaccination is the most intrusive measure an employer can mandate and, in some circumstances, may be a breach of an employee’s human rights, care should be taken in deciding whether requiring the vaccination of employees with disclosure is a reasonable precaution for the protection of a worker. Pressuring an employee to vaccinate may also be considered harassment under the Occupational Health and Safety Act. Without exercising great care, the employer may be liable for any damages related to human rights, privacy, loss of income, or any adverse effects from the vaccination.

“An employer should never make a decision to order that employees be vaccinated based on its own views of the benefits or efficacy of the vaccine, or on business reasons. The decision should be based on health and safety along with the risk of COVID-19 transmission.”

Q: Can you require an employee to disclose whether they were vaccinated?

A: “Again, this will really depend on the circumstances. Right now, the federal, Ontario and New Brunswick governments have mandated disclosure of vaccination status by employees, workers, students at select workplaces (such as in the health care industry) and several other jurisdictions have mandated vaccines for some or all private industry. Without a legislative requirement to do so, employers should be careful about requiring disclosure of vaccination status, as The Office of the Privacy Commissioner of Canada warned that this is an encroachment on civil liberties.

“Employers need to balance the duty to provide a safe workplace with an employee’s privacy rights. They need to ask themselves whether the disclosure is necessary, proportional, and effective. If an employer is requesting disclosure, they should ask for as little information as possible, make sure not to store it, and keep it confidential.”

Most Canadian manufacturers support vaccine passports but are waiting for government guidance, according to a report.

Q: What if an employee refuses the vaccine on the basis of a human rights ground?

A: “At that point, an employer’s duty to accommodate will likely be triggered. An employer should request a doctor’s note from the employee to see what the request for accommodation involves. In certain circumstances, an employer may be able to ask the doctor for more information. An employer’s duty to accommodate goes to the extent of undue hardship, and it has to be something beyond financial hardship.

Ron Minken

Tejpreet (Tanya) Sambi

“Some examples of how an employer could accommodate a refusal to vaccinate would be having the employee work from home or undergo regular rapid antigen testing. The Ontario College of Physicians and Surgeons recently provided specific information to doctors that there are few acceptable medical exemptions to the COVID-19 vaccination. Whether this is meant to limit what is considered a disability under the Human Rights Code remains to be seen.”

Q: What can you do if an employee refuses to get vaccinated based on personal reasons?

A: “As long as the personal preference is not based on a human rights ground — such as age, religion, disability, sex (pregnancy), etc. — and it is purely an employee’s preference, then an employer can do a few things. One, they can educate the employee with credible sources of information and see if the employee will agree to be vaccinated. Two, if they still refuse, the employer can offer alternatives such as having the employee work from home, taking on alternative duties so that they are working in an area not accessible to the public, or regular rapid antigen testing.

“And three, as a last resort, they can terminate the employee without cause and provide reasonable notice. But employers probably will not want to terminate any employees for refusing to get vaccinated as they would likely not want to lose good workers or appear heavy-handed if there are reasonable alternatives available.”

A U.K. study has found that vaccines can significantly reduce transmission.