August 13, 2021
Joel Gomes

Can Workplaces Mandate The COVID Vaccine?

August 13, 2021
Joel Gomes

This article is current to the date it was published. Information and recommendations contained herein are subject to change as the COVID situation evolves. 

To begin with, it’s important to note that to date, both federal and provincial governments and employers have been largely hesitant to make vaccinations mandatory. So the easy answer to the question “Can Workplaces have a Mandatory Vaccination Policy?” is, “it depends on if the requirement to have such a policy is justifiable and reasonable for THAT workplace.” 

As workplaces re-open without mandatory vaccination laws, employers are trying to figure out how to bring back employees in a safe manner. They are juggling employees who refuse to work with others who are not vaccinated and others who outright refuse to be vaccinated. Sometimes, vaccination is refused on legitimate human rights grounds, but also because people believe the pandemic is blown out of proportion or that the vaccine is dangerous despite Health Canada’s approval. Employers are concerned about their legal duty to take all reasonable precautions to protect the health and safety of all their workers and their duty to accommodate those workers who refuse to vaccinate based on medical or religious grounds.

Creating a workplace vaccination policy touches on many complex legal & human rights issues and employers could unknowingly infringe on employees’ rights. Mandatory workplace vaccination policies can be part of a larger program for preventing workplace spread of infectious diseases. However, such policies are usually only enforceable where they are based on evidence that demonstrates there is a serious risk of infection in the workplace and that the effectiveness of the vaccine prevents the spread of infection. The policies must also achieve a balance between workplace safety, employee privacy and human rights protection.

Not all workplaces are on the same legal footing and most employers would be better off creating non-punitive alternatives to mandatory policies, or incentivizing employees to get their shots. Essentially those workplaces that will be able to justify a mandatory vaccination policy if challenged, will probably not have any issues, but for ALL employers to assume they can do it, is not a good approach to take and may result in unnecessary legal issues. Thus it is going to be industry and context dependent, with workplace specific assessments made on an employer-by-employer basis.

Any workplace vaccination policy, whether mandatory or incentive based, must allow for refusals based on medical or religious beliefs and as well the right to refuse even where incentives are offered. Refusing because an employee is pregnant is not necessarily a legitimate ground, but it may well be legitimate grounds to refuse if there is also a medical reason. Employers must also consider employees’ right to privacy with respect to their personal health information, including vaccination status. 

The need to ask for vaccination status must be tied to a legitimate workplace purpose, such as a Bonafide Occupational Requirement (BFOR) - (paramedics, child-care workers, some healthcare and PSW’s, and long-term care home employees) and a legitimate health and safety requirements in that particular workplace. Employers should consider that there may be other less intrusive way of achieving the same goals of workplace health and safety, without the need for mandating a vaccine policy. 

In workplaces where there is a legitimate BFOR mandate for a vaccine policy, There may be cases where an employees refuses the COVID vaccine but the refusal is not based on a prohibited ground(s) of discrimination and the employee is unable to work from home due to the nature of the function. In such cases accommodating said employee due to their refusal would probably create undue hardship for the employer. So it may be best for the employer to consult with their legal counsel prior to contemplating termination, to ensure compliance with Ontario’s Human Rights Code.

Another consideration for employers, and a good reason to consult legal counsel, is the unilateral changing of the terms of employment - if an employer creates a new mandatory vaccine policy. Since this vaccine requirement was not a condition of employment originally, if the new mandate is not reasonable, is not supported with an evidence-based approach as noted above and/or if the employee does not agree in writing, it can raise the risk of a constructive dismissal claim against the employer. 

If a workplace does not contain high-risk populations, and business operations have continued throughout the pandemic without serious interruption through the use of alternative measures (detailed below), it may be difficult to justify a new mandatory vaccination requirement. As the pandemic eventually eases, it may be more reasonable to allow individuals who decline vaccination to continue working under alternative measures. However, taking a precautionary approach does not mean abandoning respect for employee privacy and human rights. A balancing approach is still required.

Provincial & Public Health Resources

Suggested Workplace/Business best practice measures to follow: 

  • Implement and follow a screening protocol posted on the workplace office doors and advise employees to stay home/self-isolate if they have symptoms as detailed in the screening protocol. advise them that they'll need to let you (employer) know immediately if they need to stay home/self-Isolate, (you can use the online provincial screening tool or download a pdf to use offline
  • Maintain a sign in sheet & require employees to sign in for each shift when they’re in the workspace/office. This will help with contact tracing if needed,  
  • Require employees to actively wearing a mask/face covering, and/or use other PPE as necessary, while inside the workplace and while performing your job functions. This will mitigate spread, 
  • Provide and recommend that employees utilize disinfectants/cleaners/paper towels to clean active use surfaces which they may use regularly, 
  • Strongly recommend employees washing their hands frequently and use hand sanitizing stations, to maintain hygiene and minimize transmission risks,
  • Ensure that employees are appropriately social distancing as necessary while going about your job tasks.
  • Encourage all employees to get the COVID vaccine after consulting with their respective family physician or healthcare professional. This will not only significantly reduce chances of contacting COVID19, but will also help protect family, loved ones, friends, co-workers and clients.
Need more help and guidance?

As a Beneplan member, if you’d like to discuss or get additional guidance on this topic, or any other HR issues, you can call the complimentary HR Advice helpline provided by Beneplan for its members, or via email at hr@beneplan.ca. You also have access to "HR Toolkit" resources and templates available to you. Speak to the HR advice helpline for details.

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