Insist or accommodate?

As eligibility to receive a COVID-19 vaccination continues to expand across Canada, some employers are considering making this immunization mandatory in their workplaces. But experts recommend that employers be cautious in implementing these measures.

Ryan Watkins, an employment lawyer and partner with Whitten & Lublin in Toronto, says that employers likely have the right to implement a mandatory vaccination policy “to keep the rest of the workforce safe, especially in industries where workers interact with the public.” It’s worked in other settings, he says, pointing to similar policies in public schools where students must be vaccinated to attend “unless there is a medical or religious exemption.”

Under provincial health and safety legislation, employers have the right to protect their workers, says Watkins, which includes protection from a virus that caused a global pandemic.

What if an employee refuses? Jason K. Wong, a Toronto-based employment lawyer, says that employers need to be cautious in demanding that their employees show proof of vaccination. “It’s best to have that open dialogue to understand employee concerns and make sure that employers are relaying why they are thinking about vaccination policies,” he says.

Employers need to be “mindful of the human rights element to this,” he adds. “Under the Human Rights Code, an employee is within their rights to refuse to take the vaccine for religious or medical reasons.” That means the employer should take an accommodation request made by the employee seriously “and do their due diligence in making sure that accommodation need is met.”

Employers can inquire why the employee does not want to take the vaccine. “If it’s for religious reasons or medical reasons that can be proven and documented, those should absolutely be taken seriously on a case-by-case basis,” he says. “But if you have an employee who says, ‘I don’t believe in vaccines,’ well, that is not good enough in my opinion. That does not meet the threshold of criteria under the Human Rights Code.”

If an employee refuses to get the COVID-19 vaccination, Wong says an employer may choose to find an alternative way to address their concerns -- for example, social distancing and use of masks.

He says that it would be unlikely that an employer could dismiss an employee with cause for refusing a vaccine and would likely have to provide notice of termination.

Proportionate intrusion on privacy

Asking employees to show proof of vaccination can also raise privacy concerns.

Brenda McPhail, the director of privacy, technology and surveillance projects for the Canadian Civil Liberties Association, says that a mandatory vaccination policy is “an extremely serious step to take and it should not be made lightly.”

“Allowing a private entity like an employer to collect or use private health information has significant privacy implications,” says McPhail. “Requiring individuals generally to show a proof of vaccination, which amounts to evidence of a personal medical decision, in order to participate in public life is an intrusive request.”

McPhail says this raises questions as to whether this intrusion is proportionate to the public health benefits.

“That proportionality analysis has to be specific as we want to look at the protections conferred by the vaccines and whether or not forcing the revelation of the decision to be vaccinated or not is necessary and proportionate under the circumstances,” she says. She recommends that employers be tread carefully in making a policy requiring vaccines.

“There will be a small minority of people for whom vaccination is not medically appropriate,” says McPhail. “We can imagine a situation where an employer would not find the answer that, ‘I didn’t get vaccinated because it was not medically appropriate for me’ sufficient and at the point that they ask, ‘Why is it not medically appropriate?’ We get into an escalating situation of invasiveness.”

Employees are not generally required to tell their employer about their autoimmune conditions, for example, says McPhail, but the questions surrounding a mandatory vaccine policy could force this disclosure.

“There are problems in asking people to reveal whether or not they have made the choice to be vaccinated,” she warns, “and there are even greater problems if they have made the choice not to and attempting to find out why.”

Inexistant case law

Although McPhail says she expects that there will be litigation regarding mandatory COVID-19 vaccines in the future, but the case law offers little guidance.

“That’s the difficult thing about this,” says Watkins. “We’ve never been in this situation before.”

Watkins points out that case law surrounding mandatory flu vaccines has resulted in different decisions based on the circumstances.

“But those cases dealt with a flu vaccine and COVID-19 is more contagious, more deadly and has created a global pandemic. So that paradigm has shifted,” he says. “I think that we will have to wait and see.”

Meanwhile, McPhail says that she sees the effects of COVID-19 fatigue.

“We are all so sick of this,” she says. “We are all so desperate to go back to some version of normal where we get to be together in an office, where we get to be together on the streets, in stores, in our homes, but there is a real risk that public and private sector organizations are going to make decisions based on that fatigue and fear and not on what is genuinely right and what is genuinely fair and what is going to create the kind of new normal that we really want to live in.”