In March 2020, the world was devastated as it faced an unforeseeable reality: the World Health Organization announced that a deadly pandemic was rapidly spreading throughout the globe.  The immediate questions facing Canadian employers were whether they would be permitted to operate in this dangerous circumstance and, if so, how they could prevent their workplaces from becoming hotbeds of COVID-19 transmission.  Before long, “remote work” became the way of the world; businesses not suited to it were fighting desperately for their economic survival.  During lockdowns of significant duration, only workplaces that provide essential services were permitted to remain open.

Meanwhile, COVID-19 vaccines were developed in record time.  Canada announced that the Pfizer and Moderna vaccines met Health Canada’s requirements on December 9, 2020, and December 23, 2020, respectively; additional vaccine approvals may soon be announced.   

With this progress, 2021 brings new questions for Canadian employers; the most challenging of all is whether, in the unprecedented circumstance of a global pandemic, they can require their employees to be vaccinated.  To date, the federal government and provincial governments have not mandated vaccination and they are unlikely to do so.  Prime Minister Trudeau promised all Canadians that they could be vaccinated by September 2021 but only if they wanted to.  Furthermore, we do not have existing case law addressing the mandatory vaccination of employees in the context of a global pandemic.  Any existing case law relates only to mandatory flu vaccination programs in a unionized context in hospitals and long-term care homes and these decisions are inconsistent.  

If employers are permitted to require employees to be vaccinated with a COVID-19 vaccine, their vaccination policies will have to balance occupational health and safety requirements against the Canadian Charter of Rights and Freedoms, any applicable human rights and privacy legislation, and any guidance from the federal and provincial governments.  Any employee vaccination requirement imposed by employers would have to be justified as a necessary measure pursuant to occupational health and safety legislation, on the basis that the safety of the workplace and the public are priorities over other considerations, or on the basis that it constitutes a bona fide occupational requirement (for example, mandatory vaccination may be reasonable if the employee works with immunocompromised individuals). 

Even if vaccination is justified on the basis that the safety of the workplace and the public are priorities over other considerations, or because it is a bona fide occupational requirement, an employee may be excused from being vaccinated if the reason for their refusal is a ground covered by human rights legislation, such as religion or disability, or a valid medical reason, such as an underlying medical condition that would make it dangerous for the employee to be vaccinated. Should an employee refuse to be vaccinated for one of these reasons, the employer has an obligation to accommodate the employee to the point of “undue hardship.”  What constitutes undue hardship may vary by jurisdiction; however, in Ontario (and generally) it is assessed by considering the cost, outside sources of funding, if any, and health and safety requirements, if any.  Furthermore, if an employer requires employees to be vaccinated and the employee becomes vaccinated as a result, there could be claims that the employer is liable, at least in part, for any harm caused by the vaccine. 

In a unionized workplace, employers that are considering mandatory vaccination of employees should review their collective bargaining agreements, especially their management rights clauses, to determine whether they have a duty to bargain with the union over a vaccine program. If they confirm the right to unilaterally institute a vaccination program, employers may still wish to consult with the union when developing such a program as union support would be of assistance in encouraging employee participation.  Employers must also consider relevant obligations under applicable health and safety legislation, including any obligations to consult with a health and safety representative or a joint health and safety committee, as well as the duties, obligations and requirements of any applicable privacy legislation.

If an employer mandates employee vaccinations and the employer implements teleworking on a unilateral basis for an employee who cannot or will not agree to be vaccinated, employers should consider a number of issues: a) claims for breach of contract or constructive dismissal, b) any legislation, contract and/or policy with respect to teleworking and related expenses, and c) relevant considerations relating to health and safety.

If an employer is permitted to require vaccination, telework is not an option, the employee lacks discrimination grounds or a valid medical reason for their refusal or inability to be vaccinated, and the employer refuses to allow the employee to work, such an action could raise a constructive dismissal claim.  Alternatively, the employer can terminate the employee but such a termination would be subject to the provisions of the employee’s contract of employment, applicable employment standards legislation, or common law requirements as it relates to notice of termination and severance.  This could prove to be a significant expense for the employer in the case of a long-term employee of advanced age in a senior management position.

The question whether Canadian employers can mandate employee vaccination is currently less urgent than we may have hoped; vaccines are not widely available given the slow pace of vaccine distribution.  It will only be once the pace of distribution accelerates, and after all Canadians who want to be vaccinated have had the opportunity to be vaccinated, that the question will become truly relevant and case law/legislation will be further developed.  In the meantime, it may be best initially for employers to encourage employee vaccination by providing education/referral to resources about its benefits, rather than actually mandate it. 

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.