Clarifying – Slightly – The Mandatory Vaccination Picture

As we march farther along the COVID-19 pandemic path, things are (ever so) slowly coming into focus for employers in terms of how to deal with employees. The topic of the moment, of course, is whether employers can impose mandatory vaccination policies.

Robert Smithson, whose employment law articles are some of the best and no-nonsense we’ve seen on the subject of COVID-19, provides his perspective. 

The original version of this article can be found on Smithson Employment Law Corporation. 

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Ontario Human Rights Commission

Things got slightly less blurry with a recent statement issued by the Ontario Human Rights Commission, in effect confirming that personal vaccination preferences do not amount to a religious “creed” for the purposes of the Ontario Human Rights Code. That decision is not directly applicable to the B.C. context, but it’s another indication of how human rights adjudicators will view employees’ complaints arising from mandatory vaccination policies.

In effect, so-called anti-vaxxers (people who refuse to be vaccinated based solely on their personal preferences) will not have the right to be accommodated under the Ontario legislation. This is another indication that adjudicators view with skepticism such attempts to claim a human rights remedy.

In its decision, the Commission stated that - while the Ontario Human Rights Code prohibits discrimination based on creed/a system of religious beliefs, individuals’ personal preferences or singular beliefs do not amount to a creed. The Commission stated that its position is that a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code.

The Commission went on to state that, "Even if a person could show they were denied a service or employment because of a creed-based belief against vaccinations, the duty to accommodate does not necessarily require they be exempted from vaccine mandates, certification or COVID testing requirements."

It appears the Commission’s position is that mandating and requiring proof of vaccination to protect people at work or when receiving services is "generally permissible" during a pandemic as long as people with valid human rights grounds are reasonable accommodated. This seems to reflect the approach taken by the B.C. Human Rights Tribunal in the few COVID-related decisions it has issued to date.

The B.C. Setting

As the B.C. government expands the scope of its mandatory vaccination rules – soon to include all public service employees – private employers are edging down the path towards imposing their own mandatory vaccination policies. It’s not so easy when you are a private employer; after all, you can’t just pass your own laws making your vaccination policies legally permissible.

And, the B.C. government hasn’t exactly leaped to the task of providing private employers with protection against legal complaints from uncooperative employees. It wouldn’t be all that difficult – easy to say from where I sit – for the government to extend comprehensive protection to private employers wanting their employees to become vaccinated, but I don’t think we should hold our breath in wait for that development.

Nonetheless, of the two main sources of legal concern when it comes to mandatory vaccination policies, the human rights angle seems to be fading in importance. Though I wouldn’t have guessed (18 months ago) that this would be the case, consistent messaging from human rights tribunals and commissions indicates they will not harbour complaints from people who simply choose not to get jabbed.

Common Law Claims for Wrongful Dismissal

That’s good news for employers, but it doesn’t resolve employers’ biggest concern, which is the risk of wrongful/constructive dismissal complaints (arising if the employer terminates or places on indefinite leave persons who refuse to become vaccinated). Still, the mandatory vaccination picture has gotten (slightly) clearer.

Mandatory Vaccination Policies

As I’ve now worked with private employer clients who wish to impose a mandatory vaccination policy (come what may), I have developed a sense of what these policies will look like and what they will entail. But, implementing the policy is the easy part; dealing with the fallout isn’t quite so simple.

The first hurdle employers face is figuring out how to enforce the policy, as many procedural questions arise. Who is going to be responsible for ensuring employees comply? By what date must they comply? What specific evidence of vaccination will they be required to show? What will the employer accept as valid evidence of (for instance) a medical restriction or a religious objection? What, exactly, will be done with uncooperative people who don’t have a valid human rights ground for an exemption? All of these issues have to be worked through and ironed out to ensure (somewhat) smooth implementation of the policy.

It is worth noting that mandatory vaccination policies are something of a dual-edged sword. While employers understandably want their staff to be vaccinated, implementing a mandatory policy creates the very real likelihood of losing a significant number of staff virtually overnight.

If (roughly) 20% of the population is resistant to becoming vaccinated, then you have to expect a similar percentage of your employee contingent will refuse to cooperate with your policy. That being the case, there is the very real possibility that you’ll lose 20% of your staff to an unpaid leave of absence (not to mention the possibility they’ll sue for wrongful/constructive dismissal).

All that having been said, some employers feel it is worth the various risks to impose mandatory vaccination policies. We’ll find out, at some point, if the courts are on their side.

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This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.