In Ontario, the vaccination campaign is well underway. In our recent webinar, a common question that was asked was whether an employer could force an employee to get vaccinated. Click here to watch the webinar that deals with that question.
As vaccine supply increases, the question of whether an employer can force an employee to get vaccinated becomes more relevant. So – can an employer force an employee to get vaccinated? The simple answer is, it depends.
In Ontario, mandatory vaccination is not unprecedented. For example, there is existing legislation that requires parents to vaccinate their children in order to attend school, with consequences, such as suspension of the student if they fail to do so. This law provides exceptions based on a religious objection or if a student is medically unable to receive a vaccination due to health reasons.
Employer Perspective: Mandatory Vaccine Policies
In the employment context, an employer generally has the authority to create policies that govern their workplace. However, this power is not unlimited as workplace policies must be reasonable. An employer also has a duty to their employees to provide a safe work environment.
In the context of a mandatory COVID-19 vaccination policy where there are consequences for failing to get a vaccine, whether such a policy can be justified will depend on the type of workplace. For example, in a healthcare setting, it would likely be easier to justify a mandatory vaccine policy given the significant risk of COVID-19 and the vulnerable populations with whom many healthcare workers interact. Similarly, in a workplace that is public-facing, there may also be justification for a vaccine policy. However, a mandatory vaccine policy may not be justifiable in a workplace where many employees can work from home, or which isn’t public-facing.
In order to not run afoul of human rights legislation, any vaccination policy should also allow for reasonable accommodation of those employees who are members of a protected group, up to the point of undue hardship for the employer. For example, those who cannot be vaccinated due to health or religious concerns should be provided with an alternative to a vaccine. Under human rights legislation, an employer does not have an obligation to accommodate the preference of an employee if the employee is not a member of a protected group.
There is currently no case law that directly addresses vaccination policies in a non-unionized environment. In a unionized environment, vaccination policies related to influenza, even in the healthcare context, are not always upheld as reasonable. In one case, the employer had a policy that required employees to either get vaccinated or wear a mask throughout the entirety of flu season. The decision-maker ultimately determined that there was not enough scientific evidence to support the policy and it was not upheld. When this policy was revisited a few years later, a different decision-maker also found the policy to be unreasonable, specifically noting that there was not enough evidence of a problem with influenza being transmitted by asymptomatic or unvaccinated healthcare workers. The decision-maker also noted that if there was a vaccine that was close to 100% effective, then the matter could be revisited.
With respect to COVID-19, there is scientific evidence that asymptomatic or pre-symptomatic transmission may at least play a role in spreading the virus. There is also a difference in efficacy between the COVID-19 vaccines (many of which have an efficacy of between 85% and 95%) and the flu vaccine (which has an efficacy rate of up to 60% but varies depending on the year).
Conclusion on Workplace Policies
The law in this area is uncertain. An employer has a general duty to provide a safe work environment but must also have reasonable policies. If an employer chooses to implement a vaccine policy, there are many concerns to be aware of to not run afoul of human rights and employment laws. If your workplace is considering implementing a vaccine policy, we recommend speaking with a lawyer first.
Employee Perspective: Can an Employee Refuse Vaccination?
An employer cannot force their employees to get vaccinated, however, as discussed above, an employer could implement a mandatory vaccination policy such that an employee must receive a vaccination to remain employed.
If an employee is dismissed for failure to comply with such a policy, whether the particular employee would have any redress would depend on the circumstances - such as the type of workplace, manner of dismissal, and whether the employer complied with the relevant employment contract and legislation. Generally, an employer is entitled to dismiss an employee without a reason as long as they comply with the relevant legislation and the dismissal is not for discriminatory reasons. At present, there is no case law on this point. It remains to be seen how a court would deal with future cases where a non-unionized employee who is not a member of a protected group is dismissed for failing to comply with a mandatory vaccine policy.
If you believe you may have been dismissed improperly, we recommend speaking with a lawyer.