“The human rights of employees must be balanced against an employer’s right and obligation to maintain a safe and healthy workplace. This obligation is heightened in high-risk workplaces such as hospitals or aged care homes, where there may be grounds to argue that mandatory vaccination is required in order for employees to safely perform their duties.”
Canada has now approved two COVID-19 vaccines, and Prime Minister Justin Trudeau has stated that all Canadians, who want to be vaccinated, will be by September of this year. While this is promising, the government has not mandated vaccination and polls show that 25% of Canadians do not wish to get the COVID-19 vaccine. This presents an important question for employers: Can you force your employees to take the vaccine when it is available?
The short answer is no.
Given that some employees may have valid human rights objections to the vaccine, employers are advised against imposing policies mandating vaccination or providing incentives for employees to get the vaccine. If an employee raises a valid medical or religious reason for refusing the vaccine, that is beyond a political or personal opposition to it, their employer may have to accept their decision. As we know, employers must accommodate an employee’s human rights-based requests for accommodation up to the point of undue hardship. If an employer decides to terminate an employee for refusing the vaccine, and that employee has a valid human rights objection, the employer may be in violation of the Human Rights Code. In the unionized context, it will be far more difficult to terminate an employee refusing to get the vaccine due to the requirement for the employer to prove just cause. Refusing to get vaccinated will likely not meet the threshold for ‘just cause’. The human rights of employees must be balanced against an employer’s right and obligation to maintain a safe and healthy workplace. This obligation is heightened in high-risk workplaces such as hospitals or aged care homes, where there may be grounds to argue that mandatory vaccination is required in order for employees to safely perform their duties. Even in such circumstances, employers are advised to proceed with caution and properly assess any valid human rights concerns. Employers can take steps to mitigate the risk of COVID-19 spread in the face of vaccine refusals by continuing to use masks, work from home policies and social distancing measures. Once herd immunity is reached (i.e., when a large enough percentage of the population has been vaccinated), those who have refused to take the vaccine can presumably return to work and be protected against the virus. There are a number of ethical and legal issues involved in the rollout of the COVID-19 vaccines, which directly impact Canadian employers. The lawyers at Lakhani Campea LLP continue to assist our clients in navigating these unchartered waters and would be happy to help you with any COVID-19 related workplace issues.