Employers mandating COVID-19 vaccinations in the workplace. Is it legal?

Following the Government of Canada’s announcement about mandatory vaccinations for workers in the federal public sector, a growing list of employers have been considering their own mandatory vaccination policies for employees returning to the workplace.

But, even when it’s meant to keep workplaces and employees safe, a mandatory vaccination policy may carry legal implications – and HR professionals and their employers will need to understand what these are before taking any action.

To shed some light on this important topic, HRPA turned to legal experts, Jon Pinkus, Partner, Samfiru Tumarkin LLP, and Casey Dockendorff, Partner, Filion Wakely Thorup Angeletti LLP.

Are mandatory vaccination policies in the workplace legal?

Right now, there is no federal or provincial law that requires mandatory vaccinations for all employees.

With that said, employers do have a legal obligation to create a safe and healthy workplace for employees under Occupational Health and Safety Act (OHSA). Which means many organizations (including the City of Toronto) are introducing vaccination policies to comply with their OHSA obligations. In fact, Toronto’s Medical Officer of Health, Dr. Eileen de Villa, “strongly recommended” that employers institute a vaccination policy to protect employees from COVID-19.

On August 17, 2021, the Ontario Government announced that it will mandate COVID-19 vaccination policies for high-risk settings like hospitals, schools and child care facilities to keep the province’s most vulnerable populations safe.

Key Considerations

So, while employers are not legally required to implement mandatory vaccination policies in most sectors, there are legal considerations for those who choose to implement mandatory vaccination policies:

1. Human Rights

The Ontario Human Rights Commission (OHRC) recently stated that “mandating and requiring proof of vaccination is generally permissible under the Human Rights Code as long as protections are put in place to make sure people who are unable to be vaccinated for Code-related reasons are reasonably accommodated.”

What would some Code-related reasons be for refusing vaccination?

“If a person is allergic to a particular ingredient in a vaccine, the policy should incorporate an exemption for this to account for human rights protections,” says Dockendorff.

“Policies can also be challenged if they are discriminatory,” adds Pinkus. Depending on the region, compulsory vaccines at work can be challenged based on human rights concerns like disability (which can be interpreted to include medical conditions) and religion (political beliefs are applicable in a few provinces – not Ontario).

2. Privacy

An employee’s vaccine status is considered personal information. Employees would need to consent to sharing this information with employers. At the same time, employers would need to demonstrate that the collection and use of this information is done for a justifiable reason, with due diligence in storage and protection of this personal information.

For organizations with vaccine policies in place, the argument is often that the collection of this information is required to protect all employees.

But whether the collection of this information violates a workers’ right to privacy has yet to be tested out in courts.

“We don’t know how adjudicators are going to decide this given the significant impact COVID-19 has had around the world. Each case is likely going to need to be looked at individually,” says Dockendorff.

Other questions to think about: How will employers collect and store this information? What happens if an employee refuses to disclose their vaccine status?

3. Accommodations

Where refusal is based on justifiable grounds (e.g. human rights legislation, medical reasons, etc.) employers must provide accommodation where possible. “Or they put themselves at risk for potential litigations,” says Pinkus.

HR professionals and employers can accommodate employees by incorporating remote work, requiring PPE and enforcing other hygiene and social distancing protocols.

They can also offer COVID-19 testing. “Yes, regular COVID-19 testing will be much easier for an employer to justify and can be mandated in certain workplaces, where there is an elevated risk and the practice is consistent with provincial or federal health guidelines,” says Pinkus.

“What will be interesting though is when mandated COVID-19 testing becomes excessive. Is being tested everyday too much? How about every 3 days or 7 days?” Dockendorff adds.

4. Can an employer terminate an employee that refuses to vaccinate for reasons other than protected medical or human rights grounds?

The answer: We don’t know yet and many of the considerations are specific to individual circumstances. Employers need to consider what is required for a job, what the bona fide requirements are and what can and cannot be reasonably accommodated.

“We don’t know what courts are going to do with mandatory vaccination policies where termination for non-compliance is the outcome. Will that termination be upheld?” asks Dockendorff. “What I suspect will happen: the courts will look at this on a case-by-case basis. What setting are they in? In a health care setting, such as a hospital, it will likely be easier to uphold such a policy.”

Pinkus, on the other hand, stresses this important point: “The vast majority of employers who terminate employees for non-compliance with a vaccination policy may be doing so with the obligation to pay termination pay/severance. Those who place employees on an unpaid leave should expect the same outcome. The only exceptions are industries in which it has been mandated for employees (the most prominent example being healthcare in B.C.).”

Questions for HR leaders implementing a COVID-19 policy

1. What’s the company goal? Consider your company culture before drafting your COVID-19 vaccination policy. What do you ultimately want to achieve? Are you looking to achieve 100% vaccination? Or does your organization just want to make sure everyone has the information they need to make a decision about getting vaccinated?
   
   
2. How many employees are vaccinated, right now? Figure out how many are not vaccinated. Maybe there are alternative solutions to accommodate them like implementing a work from home policy, mandatory PPE in the workplace or other additional measures.
   
   
3. What are the consequences of failing to comply? Will staff, who are not vaccinated, be put on unpaid leave? Will they be terminated? Re-deployed?  Assigned to work from home? And remember, under applicable human rights legislation, there may be a duty to accommodate in certain circumstances.

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For more on this topic and other practical and legal considerations involved in managing a post-pandemic workforce, register for the HR Law Conference! Happening October 27 and 28, learn from the most experienced subject matter experts in HR law on the issues impacting the future workplace and HR’s role in it.

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