With the first round of COVID-19 vaccinations expected to soon be administered to Canadians, some employers are no doubt asking one important question: to what extent can vaccination be mandatorily required for employees in Canada’s physical workplaces? Preliminary insights into some of the key legal considerations are discussed below.
Can an employer unilaterally implement a mandatory vaccination policy in the workplace?
The short answer is: yes, but within certain limits.
In Canada, the limits to an employer’s ability to implement a mandatory vaccination by policy in the workplace have predominantly been developed in the unionized context, specifically when management’s rights under a collective agreement have come under scrutiny. In this context, the case law has circumscribed an employer’s ability to impose a workplace policy so it is reasonable in the circumstances and respectful of collectively bargained rights. Specifically, policies should be:
- consistent with the applicable collective agreement;
- reasonable in the circumstances;
- clear and unequivocal;
- brought to the attention of the affected employees, including the disciplinary measures in cases of non-compliance; and
- consistently enforced.
To help achieve this, employers who anticipate the potential need for a workplace vaccination policy would be well served to carefully consider some key tips, discussed below, on what it should include and how to implement it.
How should employers go about implementing a vaccination policy in the workplace?
Back it up with verifiable facts and evidence
A vaccination policy based on a fact-driven assessment, and backed by convincing evidence, is important. Inevitably, this exercise will depend in part on the nature of the employer’s operations, the level of risk or hazard related to transmission, and the competing rights and interests at play. Gathering and documenting relevant information and evidence can help strengthen an employer’s position down the road, should its policy be challenged.
Labour arbitrators will be reluctant to enforce a mandatory workplace vaccination policy without sufficiently convincing evidence that the policy meets a legitimate need in the workplace and is reasonable in all the circumstances. Keeping in mind that vaccination policies often have broader human rights implications (which often weigh in favour of the employee), employers generally bear the onus to justify, on health and safety grounds, that implementing a vaccination policy is reasonable.
Include a reasonable, non-disciplinary alternative to vaccination
In Canada, blanket workplace policies that require all employees to be vaccinated – or else terminated – have generally been found to be an unreasonable use of management’s rule-making authority, or otherwise inconsistent with principles of labour law.
In addition, where so-called Charter values are in play, the case law has held that consenting to a potentially invasive medical treatment, like vaccination, is an inherently profound and personal decision that individuals themselves should ultimately make.
Vaccination policies have, however, withstood Charter scrutiny and been justified as a proper use of management’s rule-making authority when they provide employees with a reasonable, non-disciplinary alternative to vaccination, such as allowing non-vaccinated employees to go on an unpaid leave of absence when the risk of workplace transmission is high, like during outbreaks.
Admittedly for now, employers may find it difficult or impracticable to manage the back-and-forth of non-vaccinated employees on and off unpaid leave of absences depending on whether outbreaks occur in the workplace. Until a significant portion of the Canadian population is vaccinated against COVID-19, some employers may need to consider other options for employees, such as vacation, special protected COVID-19-related leaves, enacted in most provinces and in the federally regulated sector (while they remain accessible), or access to other employee entitlements. Further options for accommodation, discussed below, may also be possible in some cases.
Consider options for accommodation
Mandatory vaccination programs in Canada have been challenged on the basis of individual and fundamental rights and freedoms, as understood under the Canadian Charter of Rights and Freedoms. In addition, under human rights legislation, an employee who cannot be vaccinated for reasons tied to a prohibited ground for discrimination, like disability or creed, could request an accommodation.
In these circumstances, some employers may have to consider whether their policies properly consider their duty not to discriminate and provide reasonable accommodation to their employees – for example, by narrowing the policy to front-line employees or requiring non-vaccinated employees to employ enhanced health and safety measures (such as wearing a surgical, or nonmedical mask) where appropriate in the circumstances. Other possible accommodations for non-vaccinated employees, or for those with family care obligations for non-vaccinated children unable to attend school, may also include considering, and possibly providing, teleworking arrangements.
Notify employees and consider appropriate enforcement
Another of an employer’s chief considerations is giving adequate thought to the disciplinary measures, if any, it will impose for failure to comply with the rules. While the disciplinary consequences for non-compliance may be severe, good employers will in practice strive to ensure any disciplinary measures are reasonable on the facts and proportional to the wrong committed.
Before implementing a mandatory vaccination policy, employers should notify their employees of the applicable requirements and disciplinary sanctions in cases of non-compliance. Failing to properly do so can open the door to serious legal risks, including the possibility of the policy being unenforceable.
To help ensure vaccination requirements are properly communicated to affected employees, employers may, for example, provide mandatory virtual training and Q&A sessions. In this setting, some employers may also consider providing employees with additional resources on vaccine awareness. Such resources can help reduce anxiety and stress surrounding vaccination, separate myth from truth, and promote informed decision-making among the workforce.
In addition, finding measures to consistently enforce the policies from the time they are introduced is important. Employers can work to achieve this by, for instance, ensuring sufficient resources from management, HR or other affected departments are dedicated to properly enforcing their vaccination policy.
What’s next for employers?
To date, official guidance from public health authorities is not clear on the extent to which vaccination against COVID-19 will be compulsory in Canada, including workplaces. In its recently released report, the National Advisory Committee on Immunization recommended that priority doses be first offered to stage 1 and stage 2 individuals, but fell short of providing any specific guidance on what do if that offer is declined.
While nationwide mandatory vaccination for COVID-19 remains unclear, it should be noted that in certain Canadian jurisdictions, emergency legislation does, under certain circumstances, empower public authorities to take broad public health measures, which could include mandatory vaccination.
For instance, under Quebec’s Public Health Act, once a public health emergency has been declared, the government may exercise a wide array of powers to respond. This includes the power to “order compulsory vaccination of the entire population or any part of it against […] any contagious disease seriously threatening the health of the population” without delay and without further formality. Similarly, under Alberta’s Public Health Act, government officials can require mandatory immunization against diseases during a public health emergency
In addition, governments in some jurisdictions have authority to require vaccination against a disease, whether or not the jurisdiction is in a state of emergency. For example, in Ontario, under the Immunization of School Pupils Act, children can be suspended from school if they are not immunized. The legislation also provides that in the case of an outbreak of an illness or disease, children not vaccinated against the disease may be excluded from school. Other parts of Canada, such as New Brunswick, have similar legislation.
As the provinces now map out their plans on how to go about mass vaccinating Canadians in the upcoming year, further information or guidance on this topic may be released. In the meantime, employers should keep a watchful eye on how governments will roll out the vaccines and what is expected of them during this process.
Likewise, employers already contemplating implementing a vaccination policy would be wise to begin by:
- performing a fact-based assessment of risks posed in the workplace and the extent to which vaccination can be used to mitigate them;
- considering what alternatives to vaccinations can be offered, taking into account any possible accommodation-related obligations;
- devising ways to properly communicate vaccination requirements in the workplace and the consequences for non-compliance; and,
- planning on how the policy will be consistently maintained.
Finally, some employers may also consider working with union or employee representatives to facilitate the implementation of a vaccination policy. These days, it is possible they may consent to some form of vaccination requirements in the continued fight against COVID-19.
The authors wish to thank Emily Deraîche-Grossberg, articling student, for her help in preparing this legal update.