There is no better tool to help prevent the spread of COVID-19 than a vaccine. The Pfizer and Moderna vaccines authorized for use in Canada claim to be over 90% effective in preventing or minimizing COVID-19 symptoms.
However, no one can force another to undergo medical treatment without consent or statutory authorization. Our governments do not appear willing to pass legislation mandating vaccination. The preference, at least for now, seems to be encouraging vaccination on a voluntary basis.
Subject to human rights considerations – more on this below - there is no reason employers can’t ask new employees to provide proof of vaccination status as a condition of employment. In a pre-pandemic world, though, employers did not think to include a term or condition of employment based on vaccination status. Existing employees therefore present a more complicated situation.
Non-unionized employers who unilaterally change terms and conditions of employment risk facing actions for constructive dismissal. The test is, briefly stated, whether the unilateral change is substantial in the eyes of a reasonable third person. The assessment is contextual and looks at all of the relevant circumstances.
Historically, a forced medical examination has been considered an assault or battery. Hence, a condition of employment imposed by an employer to vaccinate against COVID-19 would undoubtedly represent a significant change to the employment relationship.
Labour arbitrators in the unionized setting have invalidated employer policies that would require an employee to take a flu vaccine or remain out of the workplace without pay during a period of flu outbreak. Expectations may be changing, though, according to more recent arbitration decisions. An Ontario arbitrator recently allowed an employer to conduct mandatory bi-weekly COVID-19 tests.
While the privacy and security interests of employees are undoubtedly central to the analysis, the employer’s safety obligations are also critical. Employers have an obligation under health and safety legislation in each jurisdiction to take every reasonable precaution for the protection of workers. Since March, employers have significantly modified their workplaces to meet the duty and mitigate the spread of COVID-19. Employees attending the workplace are expected to comply with masking and physical distancing rules.
What is reasonable in the circumstances, considered against an individual’s privacy and autonomy rights, will depend on several factors, including the status of the pandemic and the nature of the employer’s operation. Most importantly, employers who impose termination of employment as a penalty for failing to vaccinate are more likely to face and be liable for constructive dismissal.
The employee’s reasons for refusing to immunize will also be scrutinized. While employees are likely to be afforded considered deference over personal decisions involving vaccines, human rights considerations may represent the proverbial trump card for both existing and new employees.
Possible human rights objections to vaccination could include religious or disability related concerns, including allergic or other adverse reactions to a vaccine. In those circumstances, an employer would be expected to accommodate, unless it can be demonstrated that vaccination is a bona fide occupational requirement and accommodation of the employee’s refusal to vaccinate would be impossible.
Like most legal issues, there are no unequivocal answers to the question of whether or not an employer can require vaccinations as a condition of work. What is relatively clear, though, is that the answer will depend on the employer’s imposed consequence for refusing to vaccinate. COVID-19 has changed expectations in ways that could never have been anticipated. Employers will continue to be given leeway to introduce policies that protect the workplace, but will unlikely be able to coerce vaccination on the threat of termination without compensation.