Mandatory Vaccination—What Can Employers Do?

Mandatory Vaccination—What Can Employers Do?

You may be wondering whether your employer might be able to make vaccination mandatory. The answer is: it depends

By Peter W. Vlaar, LL.B., LL.M., CLAC Ontario Legal Counsel

Policies of mandatory vaccination have been making headlines of late with the federal government’s announcement that all federal employees, commercial airline, and rail passengers will need to be vaccinated, in addition to announcements of similar policies instituted by postsecondary institutions and large private sector employers across the country. These developments will come as reassuring to some and worrisome to others.

All employers have a legal obligation under each provincial health and safety legislation to do everything they reasonably can to create a safe work environment for their employees. The key question is whether fulfilling that obligation requires employers to make vaccines mandatory. The answer is not simple, primarily because of the inherent right to privacy and dignity that all Canadians enjoy whereby they are free to choose whether or not to have something like a vaccine put in their bodies.

While that right to privacy and freedom to choose is taken very seriously by the government and the legal authorities, it is not an absolute freedom, which means there are certain contexts where it would be considered legal for an employer to mandate vaccines.   

To get an idea of whether it would be legal in various industries and sectors, we can look at cases in healthcare and construction dealing with a similar (though less intrusive) procedure pertaining to COVID-19—that is, mandatory testing of employees. CLAC was the first union to challenge such a policy implemented by an employer in the healthcare sector, and although we were unsuccessful, the decision is a very helpful indicator for how similar challenges to vaccine policies might be handled. [1]

The arbitrator held in our case (and subsequent arbitrators affirmed) that the invasion of privacy and dignity required by COVID-19 tests is outweighed by the risk that COVID-19 presents in the healthcare environment. Therefore, policies of mandatory testing in the workplace are reasonable and legal.

The same issue was recently tested in the construction sector where a large employer implemented mandatory rapid antigen testing as a condition of access to the work site each day. Despite the context of a primarily outdoor construction area, and a setting involving much less vulnerable people than the healthcare sector, the arbitrator agreed with the employer that it was a reasonable exercise of management rights to maintain such a policy of testing. [2]

Key factors in the arbitrator’s decision were that the workers could not always physically distance while working, the rapid antigen testing was less invasive than the traditional PCR tests, and the policy had proven to be effective already in successfully identifying over 100 positive cases of COVID-19, meaning that the virus was posing a real and ongoing threat to the workplace.

What these cases tell us is that employers generally have more latitude to implement new policies that have as their goal preventing the spread of COVID-19, and that is true, not just for healthcare, but also for construction. However, getting a vaccine injected into one’s body is much more invasive than undergoing a COVID-19 test, which means that the nature of the workplace must pose a greater risk to justify the breach of privacy and dignity involved in mandating vaccination.

Certain workplaces will have an easier time of demonstrating that risk more than others. For instance, an employer that always works outdoors (e.g., a construction contractor) and can maintain physical distancing during work may have a more difficult time justifying the breach of privacy than an employer with workers regularly doing work indoors in close proximity to others. Thus, the question of whether a company can mandate vaccination for its workers is a very context-specific one that depends largely on the nature of the work being performed.

What is certain is that any policy of mandatory vaccination would have to include exceptions to the policy for those who are unable to get the vaccine for legitimate health reasons (e.g., immunocompromised or allergies) or for religious reasons—these are protected grounds under provincial and federal human rights codes against which employers are legally barred from discriminating. However, to succeed on a religious-based human rights complaint, one would need to prove it is connected to a tenant of one’s faith.

As such, workers who qualify for exemptions cannot be required to take the vaccine but instead can be required to undergo regular testing and/or limit the nature of their work to low-risk, low-contact environments. In some contexts, it may be reasonable to extend those exceptions to workers who remain unvaccinated as a personal choice.

Workers required to go on the sites of clients to perform their work are likely to also face vaccination requirements as a condition of access to those sites. In such cases, it is likely to be considered reasonable for employers to request workers’ vaccination status so long as employers follow the specific procedures set out in their province’s privacy legislation.

It remains to be seen what employers will be doing sector-wide, vis-à-vis policies of mandatory vaccination. CLAC supports vaccination as the main line defence against COVID-19 and encourages members to get the vaccine, if able.

That being said, CLAC also believes that workers should not suffer the permanent loss of employment as a consequence of being unvaccinated for personal reasons and that all reasonable alternatives should be made available. To that end, CLAC continues to advocate on behalf of all of its members to ensure the appropriate balance between creating a safe work environment and respecting the dignity and privacy of members is maintained so that everyone can continue working safely and productively.

[1] Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada, 2020 CanLII 100531 (ON LA)

[2] Ellisdon Construction Ltd. Et al. and LIUNA, Local 183, 2021 CanLII 50159 (ON LA)

Previous Article Interview Tips
Next Article Remind Me Again . . .