I have started writing this blog post three times, and each time, it seems like the landscape shifts before I can finalize it.
Initially, the prevailing view about requiring employees to be vaccinated was to proceed with caution and not to assume that an employer could unilaterally impose such requirements across the board, if at all. Then, we saw several levels of government proclaim that vaccination would be mandatory in certain contexts, such as education and health care. And then we saw stronger announcements, like the City of Toronto’s position that COVID-19 vaccinations will be mandatory for all City of Toronto employees and TTC workers.
At the same time, several private companies have made similar announcements in recent days. For example, Royal Bank of Canada has said that all employees in Canada who are eligible for a vaccine will be required to have two doses by October 31, and Toronto Hydro will ask all employees to provide proof of vaccination by Sept. 13.
Recommendations that Employers Mandate Vaccination
The tide seems to have turned. On August 20th, a City of Toronto press release stated that
Toronto’s Medical Officer of Health, Dr. Eileen de Villa, is strongly recommending local employers institute a workplace vaccination policy to protect their employees and the public from COVID-19.
The press release went on to provide the following guidance:
Dr. de Villa and Toronto Public Health strongly recommend that workplace vaccination policies require at minimum:
- Workers to provide proof of their vaccination series approved by Health Canada or the World Health Organization
- Unvaccinated employees to provide written proof of a medical reason from a physician or nurse practitioner that includes whether the reason is permanent or time-limited
- Unvaccinated workers to complete a vaccination education course on the risks of being unvaccinated in the workplace
Employers should also identify how workers’ vaccination status information will be collected and protected in accordance with privacy legislation and explain the level of risk posed by COVID-19 in each unique workplace setting.
Notably, the press release went on to address…
additional workplace precautions recommended to help reduce virus spread:
- COVID-19 testing
- Strict adherence to physical distancing and other public health measures
- Wearing personal protective equipment
- Ensuring that appropriate ventilation is in place”
What does this Mean for Small and Mid-Sized Employers?
Small and mid-sized businesses cannot be blamed for assuming that they can do the same as what they see other, more sophisticated organizations doing. However, as we routinely say, making assumptions about your legal rights and obligations is always risky. In a way, this is very similar to what occurred way back at the beginning of the pandemic; back then, we saw headline after headline announcing mass layoffs, and many business owners assumed that they could do the same.
At the time, our firm warned businesses that they may not have the right to impose temporary layoffs and could face liability. Many of those layoffs turned into lawsuits, and we have now seen the first few make their way to judgment. The result, as we have reported, is still inconclusive, as the courts have been inconsistent in their application of the law. The point is that any assumption would have been ill-advised and may be costly.
Read the Fine Print
Headlines only tell part of the story. When you read further, many employers that are “mandating vaccines” according to the headlines are doing so for certain groups of employees, or for employees that want to return to the workplace rather than work remotely. Many of them are more accurately described as “recommending” vaccination and setting out consequences for employees who cannot or choose not to be vaccinated, such as regular testing, distancing and mask-wearing. Notably, Toronto Mayor John Tory has not said what the consequences will be for workers that are not fully vaccinated by the deadline but said the city “is not taking any options off the table.”
The reality is that we are in uncharted territory, trying to apply the lessons from past situations to one that is not really the same. We are also, as is often the case, struggling to find the right balance between competing rights and duties. Among other considerations, we must take into account:
- The duty to provide a safe work environment;
- The need to reassure employees, customers, clients, suppliers, and the general public that it is safe to interact with staff;
- Human rights protections;
- Privacy rights; and,
- In some cases, the Charter of Rights and Freedoms.
Can employers require vaccines?
The simple answer: Yes, in most cases, they can require that an individual be vaccinated in order to work. Most employees in Canada do not have job protection, so they can be dismissed for almost any reason, or no reason at all. However, they will be entitled to compensation (often referred to as “severance”) in many cases.
Can all employees be required to get the vaccine?
It is important to distinguish forced vaccination from mandatory vaccination. The former means literally forcing someone to have the vaccine injected into their body. The latter means the person may lose their job if they refuse to be vaccinated. No one is suggesting that employers can force vaccination.
What about people with health or religious exemptions?
Individuals who have a medical or religious reason that prevents them from being vaccinated are protected from losing their job by human rights legislation unless vaccination can be shown to be a bona fide occupational requirement. Otherwise, the employer must accommodate them, which could include remote work, other ways to ensure safety such as testing, distancing and masking, or a leave of absence.
What about people who refuse?
We encourage employers to take a common sense approach. Some employees do not need to be vaccinated in order to ensure a safe work environment, such as those who work remotely. In some cases, it will be viable to have some workers continue to maintain social distancing and mask-wearing, as well as be tested regularly.
Can employees insist on working remotely?
Workers cannot insist on working remotely in most cases, but at this point, we encourage employers to consider it where remote work is viable.
Will dismissed employees get severance?
This is the key question. As I said above, most workers can be let go at any time, but they will be entitled to compensation. The only context in which they would not be entitled to “severance” is if the employer has just cause to dismiss them. To establish just cause, the employer would have to show that the vaccination requirement was reasonable and that the employee refused to comply with a lawful and reasonable request. Warning of the consequences would likely be required before dismissal for cause.
What about new hires?
Unless the candidate has a medical or or religious reason for refusing to be vaccinated, then an employer could choose not to hire them if they refuse vaccination.
The Bottom Line
Employers are in a difficult situation, trying to provide a safe work environment without trampling on individual rights. It seems like we will see more and more employers choose to require vaccination, but the consequences of an employee’s refusal may vary from workplace to workplace and even within each workplace. For example, within a health care institution, those who work with patients may lose their job if they refuse to be vaccinated, whereas office workers may be subjected to testing and other safety measures.
Employers should not assume they can fire anyone who is unvaccinated, especially without providing severance. And employees should not assume they have no rights. Contact us to understand your rights and obligations.