The COVID-19 pandemic delivered a crushing blow to Canada’s economy. Businesses adapted as best they could, often restructuring staff and operations numerous times over the year.
Many have simply not survived. Thus, the promise of revolutionary new vaccines (reportedly 90%+ effective against COVID-19) has allowed businesses to start planning for a return to normal.
Though most Canadians are likely to take the vaccine, there are some who will not. Although it is early days, employers have already started asking whether they can mandate vaccinations in their workplaces during this pandemic. Some assume they can. The fact is our courts, tribunals and arbitrators have not been required to answer this question in modern times. The last global pandemic of COVID-19 proportions happened over 100 years ago with the Spanish Flu. As a result, we are left to wonder how the legal decisionmakers will rule on this issue.
At stake here is a classic balancing of rights and obligations. Employers have a statutory obligation (pursuant to the Occupational Health and Safety Act) to take all reasonable precautions to protect workers. In addition, employers want to protect themselves from civil claims that might be brought by infected employees and customers alleging negligence in the business’s pandemic response. (They also do not want a COVID-19 outbreak in their workplace that interferes with the business.)
Employees, on the other hand, have a right to bodily integrity and privacy. Human rights legislation across Canada prohibits discrimination on the basis of disability and religion/creed. Thus, many employees who do not want to be vaccinated can seek an accommodation measure. In addition, privacy legislation in some jurisdictions limits what employers can ask of their employees. Historically, the decisionmakers have not interfered with these rights lightly. For instance, in the employee drug and alcohol testing cases (likely the most relevant jurisprudence), the courts thoroughly critiqued employer policies mandating alcohol and drug testing.
The leading drug and alcohol testing cases were decided within the framework of human rights or, in the case of unionized workplaces, whether such testing fell within the management rights clause of a collective agreement. The courts ruled that employers could not simply point to dangerous workplaces alone (e.g. industrial plants, oil rigs, nuclear installations, etc.) to justify broad policies mandating alcohol and drug testing. Rather, before infringing on an employee’s right to bodily integrity and privacy, the courts required clear evidence that such testing was likely to improve safety. The courts pored over the scientific evidence tendered on that issue.
In addition, the courts greatly circumscribed the reach of such policies. Alcohol testing was more likely to be justified than drug testing, as it could provide a clearer picture of impairment. Employers were also required to show a history of drug or alcohol abuse in the workplace. Furthermore, such policies could apply only to those in safety-sensitive positions.
Mandatory vaccination against influenza has also been the subject of a body of arbitral jurisprudence from the healthcare sector. A review of those cases suggests that arbitrators struggled with the balancing of rights in the case of the seasonal flu, even though those employees work with the most vulnerable populations. Nonetheless, given that COVID-19 is a more severe disease and that most workplaces are not dedicated to servicing vulnerable populations, these decisions are likely of limited relevance outside of that industry.
In light of the available jurisprudence, workplace vaccination policies will be thoroughly critiqued to ensure they strike an appropriate balance between protection against the virus and employees’ human rights, privacy interests and bodily integrity. In other words, employers will be shown little deference as the decisionmakers determine whether an employer’s policy is reasonable. In our view, it is unlikely that most employers would be permitted to institute a mandatory COVID-19 vaccination policy (outside of the health and long-term care sectors).
In addition to the above-noted legal risks, businesses should also be aware that mandating vaccination may trigger a constructive dismissal. It is unlikely that individual employment agreements tackle the issue of vaccination. What remains to be seen is whether the decision makers would imply such a term in an individual employment contract at the behest of the employer (perhaps in acknowledging the employer’s occupational health and safety obligations). Of course, where individual claims are possible, employers illegally imposing vaccination may open the door to class action lawsuits.
What are businesses to do?
If businesses wish to put in place a workplace vaccination policy, it should address the particular needs of the workplace and not be generic. The policy should encourage vaccination uptake and provide clarity about alternative measures for those who cannot or will not vaccinate. While mandatory vaccination may not be possible, employers would have a strong argument that they need to know their workers’ vaccination status to protect others in the workplace. Disclosure of vaccination status should be addressed in the policy.
One of the alternative measures to vaccination can be a requirement that employees who are not vaccinated must wear a mask and practise physical distancing when in the workplace. The ability to impose such a measure will also depend on the risks to an employer’s workers and clients. Another alternative measure is allowing employees to work remotely. Many businesses already have a track record for allowing employees to work from home. By most accounts, remote work has been easier and more productive than anticipated. As a result, it will be difficult for employers to argue that permitting telework would constitute an undue hardship.
Employers should also consider that as vaccinations continue, it is likely that the amount of COVID-19 in the community will drop significantly and, over time, the vast majority of the vulnerable groups will be vaccinated. Thus, at some point in time, the risk reduction associated with further vaccination, and even with mask wearing, will diminish. This is an evolving situation, and the risks and benefits must be continually reassessed.
Public health legislation and orders are also likely to evolve. As the COVID-19 pandemic progresses and vaccination uptake data becomes available, public health authorities may make further orders relevant to this issue. As a result, vaccination policies may need to be updated. To date, there is no indication that public health authorities intend to mandate COVID-19 vaccinations in any workplace. Furthermore, it is not expected that masks will be mandatory forever. The decisionmakers will, of course, be looking at public health orders and the recommendations of the “experts” when considering workplace vaccination policies.
Vaccination policies should also reference the Human Rights Code. When accommodation requests are made on the basis of disability or religion/creed, there must be provision for accommodation measures on a case-by-case basis. This includes the ability of management to consider alternatives not identified in the policy.
Drafting a workplace vaccination policy is likely to be challenging. Nonetheless, having such a policy ensures employees understand what is expected of them, manages expectations and avoids conflict. For more information on workplace vaccination policies, please contact me. Other workplace policies may also require updating, especially remote work policies. For more information about remote work policies, consult my blog on the subject