As COVID-19 vaccinations have begun their roll out across Canada, the most popular question floating around the workplace is: 

Can employers require that employees take the COVID-19 vaccine?

As with many unprecedented employment situations we've encountered during the COVID-19 pandemic,  there’s no unequivocal answer. Unfortunately. We simply have not yet seen many of these scenarios play out in the courts. 

What we can say is that to protect employees from work-related illness or injury, employers can take precautions to meet reasonable health and safety standards, which can include the introduction of policies to limit the spread of infectious diseases in the workplace. However, should an employer deem a mandatory COVID-19 vaccination policy necessary for their workplace, the following requirements and considerations should be taken before implementing that policy.

Nature of the Workplace

Without legislation, employers cannot necessitate employees to take any sort of vaccination, or undergo any type of medical examination, for that matter. In certain situations, however, an employer may be able to enforce policies which require vaccination if an employee wishes to remain employed. In this case, employers should be prepared to defend their mandatory COVID-19 vaccination policy from potential legal challenges. The policy must be reasonably necessary, meaning it should be based on verified facts and evidence and consider the nature of the workplace, the level of risk, and the competing rights and interests at play.

For example, a mandatory COVID-19 vaccination policy could be considered reasonably necessary for a health care worker who is frequently in close contact with the public. Without a vaccine, these employees are at higher risk of contracting the virus and spreading it among the masses. However, if you have an employee who works from home with the correct safety precautions in place, then your policy will most likely not be deemed reasonably necessary.

Human Rights Considerations

Some employees may legitimately refuse taking the vaccine based on protected grounds under human rights legislation, such as religious beliefs, disabilities, or auto-immune disorders. For these circumstances, employers will have to make exceptions or accommodations for those employees to the point of undue hardship and in accordance with case law and the applicable legislation. The alternative would be for the employer to prove that no such accommodation is possible due to the nature of the employee’s position.

Privacy Considerations

In general terms, employers do hold the right to collect medical information from employees to ensure a safe workplace. However, it’s yet to be seen how these rights can apply in the context of a mandatory vaccination policy during the pandemic.

If employers decide to implement a mandatory vaccination policy, these points should be considered and stated to employees:

• How and why employee information is collected
• The type of information that is being collected
• How the information will be stored and used
• Documentation of employees who receive the vaccine
• Documentation of employees who request accommodations
• Who will this information be disclosed to and how
• If consent is required

Take Away for Employers

With the duty to protect the health and safety of their employees, it’s understandable why some employers may rush to implement a mandatory COVID-19 vaccination policy for their workplace. However, it’s a challenging task and not something to be rushed. Employers should consider the following steps before proceeding:

• Review objective evidence to determine if a mandatory policy would be deemed reasonably necessary for your workplace.
• Weigh the health and safety risk against other competing interests such as human rights and privacy considerations.
• Consider creating a voluntary policy, instead of a mandatory policy.
• Explore potential alternatives such as allowing employees to work from home or take an unpaid leave of absence if risk of transmission is high.
• Plan for how to address accommodation requests from employees who cannot take the vaccine for health reasons or for any reason based on protected grounds.
• Include a provision in your policy that declares human rights legislation will be followed.
• Ensure that all employees are made aware of the new policy and who they should contact if they have questions.
• Enforce the policy and any consequences of non-compliance from day one.

Keep in mind that the current legal environment is extremely dynamic and each workplace unique, which could significantly affect the legality of each company’s vaccination policy. Employers; therefore, are strongly encouraged to seek legal advice prior to implementing any sort of mandatory policy in their workplace.

 

Chad Carlsen is a contributing guest writer for ConnectsUs HR, a company that provides tools & resources to quickly set up a Human Resources department. 

---