Vaccines in the workplace

As the COVID-19 pandemic continues to test healthcare systems across the globe, governments have begun to approve COVID-19 vaccines. Over the next months Canadians can expect a graduated access to these vaccines. The vaccination process is anticipated to continue throughout 2021, with most Canadians vaccinated by the end of that year. As a result, employers are beginning to ask how COVID-19 vaccinations will impact their workplace.

In this bulletin, we look first at an overview of vaccination requirements in Canada and then provide a FAQ on the most common questions we anticipate employers will ask about the vaccine. However, there are two caveats to our comments:

First, our answers to the questions that we anticipate employers will have are based on the current law and provincial and national health directives. Given how rapidly governments across Canada have been implementing new laws, regulations and policies for addressing the COVID-19 pandemic it is entirely possible as vaccination efforts intensify, governments will introduce measures that impact our responses below.

Second, we have tried to provide clear and unequivocal answers as most readers dislike the nuanced and often ambiguous nature of legal advice. However, as law is necessarily both nuanced and ambiguous depending on the factual matrix, we caution that the answers below are not writ in stone, but may change for specific employers based on their unique facts.

An overview of mandatory vaccination in Canada

Canada does not legally require its citizens to take vaccines.

However, a refusal to take a vaccine may have a negative impact. For example, British Columbia, New Brunswick, Manitoba, and Ontario have immunization reporting requirements for school age children. A child who is not vaccinated or refuses to register as being vaccinated, may be removed from in-class schooling as the result of a decision of the provincial medical health officer that the lack of a vaccine presents a health risk to the other children.

In the workplace, mandatory vaccinations in the health care sector have received increased attention over the last decade and a half:

• In 2006, a B.C. arbitrator upheld a hospital policy that nurses must be vaccinated during an influenza outbreak or they would be subject to an unpaid leave of absence. However, as the issue has developed, the past five years has seen a divergence over vaccination or mask (VOM) policies in which frontline workers are required to either vaccinate or wear a mask.
• In 2013, a B.C. arbitrator upheld a VOM policy finding that, on the evidence, being vaccinated or wearing a mask reduced the risk of influenza spread and therefore was a reasonable infringement of the privacy rights of nurses. In 2018, by contract, an Ontario arbitrator reached the opposite conclusion holding that there is “scant scientific evidence of the use of masks in reducing the transmission of the [influenza] virus to patients” and that to require vaccinations the hospitals would need to show there existed a “better vaccine and more robust literature about influenza-specific patient outcomes.” The arbitrator concluded that if there were better evidence showing that vaccines or masks worked to reduce the spread of influenza the decision might be different.
• In 2019 the BC Nurses’ Union and Health Employers Association of B.C. agreed to revise existing policies to allow nurses greater professional judgement in respect of both vaccinations and masks and the issue of vaccinations in the health care sector in British Columbia continues to evolve.

Outside the medical sphere, employers have encouraged, but not required, vaccinations.

Frequently asked questions

Q1. Must an employee take the vaccine if the employer requests it?

No. An employee may not be compelled to take a vaccine. Making an employee take a vaccine:

• Is an extreme intrusion on the employee’s security of person.
• May discriminate on the basis of disability, or religious or political beliefs.
• Creates a negative incentive for an employee to jump a cue and get vaccinated ahead of other more needing members of society.
• Exposes the employer to liability should the employee suffer an adverse reaction from the vaccine.

Whether an employer can make an employee take a vaccine is different than how an employer may respond if an employee refuses to take the vaccine - see below at Q3 - Q5.

Q2. Must employees report to the employer on whether they have taken the vaccine?

No. Most employers likely will not be able to compel employees to disclose personal medical information such as whether they have taken the vaccine.

The test with disclosure of personal medical information is one of reasonableness and proportionality. There will be some workplaces where safety mandates that it is reasonable for employees to disclose whether they have be vaccinated and where vaccination is the least obtrusive means to ensure the safety of the workplace (e.g. hospital wards treating COVID-19 infected patients)

Certain employers with legitimate health concerns will still be entitled to ask employees if they have been vaccinated (e.g. meat processing plants where COVID-19 exposure has historically been high). However, the employee will likely be at liberty not to respond. We anticipate those employers would opt to treat an employee that refused to disclose as having not taken the vaccine.

Q3. Can an employer dismiss for cause an employee who refuses to take the vaccine or to disclose whether they have taken the vaccine?

Likely not, and certainly not until such time as sufficient quantities of the vaccine are readily available and the employee has been given a reasonable opportunity to be vaccinated.

Just cause arises from misconduct in employment and an employee will likely not be found to have engaged in misconduct by refusing to take the vaccine or by refusing to disclose whether they have taken the vaccine.

Q4. Can an employer dismiss without cause an employee who refuses to take the vaccine or to disclose whether they have taken the vaccine?

With risk. It is possible that employees refuse to take the vaccine due to a ground that is protected by human rights legislation. For example, an employee may refuse the injection on health, religious, or political belief grounds.

There have been reports of allergic side effects to one of the vaccines and/or to ingredients in that vaccine. An employee with an allergy sensitivity may have a disability argument justifying a refusal to take the vaccine. Likewise, the vaccine has not yet been tested on immunocompromised individuals and accordingly an individual with that type of disability may be justified in not taking the vaccine.

In the absence of any human rights protected ground that would require accommodation, an ‎employer likely can dismiss without cause an employee who refuses to take the vaccine or to disclose ‎whether they have taken the vaccine. The employer would need to provide notice or pay in lieu on such a termination.

In summary, where an employee refuses to take the vaccine or disclose if they have taken the vaccine:

• Employers should inquire as to whether that refusal is based on a ground protected by human rights.
• If the refusal is based on a protected ground, the employer must accommodate the employee to the point of undue hardship. Accommodation would include considering other options to dismissal such as mandated use of PPE and/or physical distancing, a leave of absence pending eradication of the disease,and remote work. Given the scope of possibilities of accommodation, we anticipate most employers seeking to dismiss an employee would have difficulty showing they had met the duty to accommodate.
• If the refusal is not based on a protected ground, the employer may dismiss without cause, but with working notice or a payment in lieu of that notice.

Q5. Other than dismissal, what options does an employer have with respect to an employee who refuses a vaccine?

An employer’s options depend mainly on the employer’s workplace, but may also depend on why the employee refuses the vaccine.

Employers will have an obligation to ensure a safe work environment under their applicable OHS regime.  This may mean that an employer may respond to an employee who refuses to be vaccinated by directing that employee:

• To work remotely;
• To wear appropriate PPE, such as face masks;
• To adopt different work conditions, such as moving the employee’s office or work area or requiring the employee to accept a staggered shift with a later start or end time than other employees to ensure physical distancing;
• To take a leave of absence, possibly a leave without pay.
• To undergo regular COVID-19 tests.

Conclusion

We anticipate the legal environment relating to vaccines will rapidly change. Worker safety boards will likely issue guidelines for what they expect from employers in ensuring a safe workplace. Likely human rights commissions will also issue papers with their views. Government may respond by enacting legislation that either permits or prohibits a more comprehensive approach to vaccinations.

Ultimately, we anticipate that each employer will have to assess their individual circumstances in deciding the scope of their right to inquire about employee vaccination and their response to same.

We will continue to monitor and provide updates as soon as they become available. The COVID-19 situation is rapidly evolving with new measures being adopted ‎or modified at both ‎the ‎federal and provincial level. For further information, please consult our ‎Coronavirus Resource ‎Centre or feel free to contact any member of our DLA Piper Canadian Employment and ‎Labour Law Service ‎Group, who will ‎ensure that you are acting upon the most up-to-date information.‎

This article provides only general information about legal issues and developments, and is not intended to provide specific legal advice. Please see our disclaimer for more details.