The short answer is yes, but there are some key considerations to remember.
This is obviously a very contentious issue. There has been lots of debate, and the reality is that we are trying to apply age-old laws to new and novel circumstances. There is no clear legal answer to this question, but the prevailing wisdom is that employers can require that employees be vaccinated.
It is crucial to note though that “mandatory vaccination” can have different meanings. Despite the headlines, many “mandatory vaccination policies” have stopped short of stating that an individual who chooses not to be vaccinated will lose their job. Rather, many provide for education on the benefits of vaccination and have left the door open to various ways of ensuring safety without 100% vaccination. That can involve requiring that unvaccinated employees submit to regular testing, maintain physical distancing and the ongoing use of masks, and/or work remotely.
Furthermore, human rights legislation protects employees who cannot be vaccinated as a result of medical conditions or genuinely held religious beliefs. Those employees would have a human rights claim if they were dismissed due to their failure to be vaccinated; instead they are entitled to accommodation to the point of ‘undue hardship.’ That may mean regular testing, or distancing and masking, or a work from home arrangement as needed. In appropriate circumstances, it could also mean an unpaid leave of absence. Accommodations do not need to be perfect, but they do need to be reasonable, so they may look different for every workplace.
We write these policies for a living – employers, please contact us so we can discuss your workplace and strategize on how to best structure your policies. We will help you implement policies to meet your specific needs without resulting in a costly human rights claim, the loss of a valued employee, or an unsafe workplace.
