Can Employers Require Employees to Get a COVID-19 Vaccination?
The topic of vaccinations is front of mind for many employers as Ontario ramps up plans for reopening, and many businesses are preparing to call back staff who have been laid off, or who have been working from home temporarily. As with many topics in employment law, there is no one size fits all answer, however below are some guidelines for employers to follow if you are considering implementing a mandatory vaccination policy at a non-unionized workplace.
Health and Safety vs. Human Rights and Privacy
At present, neither the Provincial nor Federal governments will be mandating vaccinations for any workplace. However, private employers have some options on this front. The Occupational Health and Safety Act states that employers are required "to take all reasonable actions" to keep employees safe. While that is one important part of the law, it must be balanced with other laws potentially at odds with a mandatory vaccination requirement, namely Human Rights legislation. For example, any form of mandatory vaccination policy must include exemptions for employees who have a medical reason that prevents them from being vaccinated, or religious beliefs that would prevent them from receiving a vaccination. This is called accommodation, and is required under the Ontario Human Rights Code.
As such exemptions must be explicitly provided for, a mandatory vaccination policy will inadvertently require staff who are unable to receive the vaccination due to a medical reason/ religious objection, to disclose the fact they have a medical condition or that they have specific religious beliefs. As an employer, this is a potential privacy violation, and not an ideal scenario.
Another aspect that must be considered is the possibility of claims an employee may bring forward as a result of a required vaccination policy. An employee could make a claim of constructive dismissal or workplace injury/ illness resulting from a mandatory vaccination.
Constructive dismissal refers to a situation where a fundamental tenet of the employment relationship is unilaterally changed, and can be deemed to have irreparably broken the employment relationship. In the context of mandatory vaccination policies, it is possible that an employee could claim that being required to submit to medical procedures (a vaccination is a medical procedure) was not a condition of employment, and therefore they cannot be required to undergo such a procedure.
Also, if an employee receives a vaccination at the employer’s behest, and becomes ill or disabled as a result, they may have a claim (WSIB or otherwise), against the employer.
Bona Fide Occupational Requirement
Perhaps the most important consideration for employers regarding a mandatory employee vaccination policy is this: what are your reasons and justifications for requiring your staff to be vaccinated? Are there no alternatives that would achieve a similar or reasonable level of protection and safety? If the answer is something along the lines of “I would feel more comfortable if all employees at the workplace are vaccinated, as I think it would be safer for all of us", that is not on its own, sufficient justification to mandate vaccinations vs. requiring the use of masks and physical distancing, working from home options. etc.
In industries where employees have contact with vulnerable populations such as the elderly, or people with medical conditions (e.g. employees working in long term care settings or staff working directly with COVID patients), those employers likely have a reasonable justification under the Bona Fide Occupational Requirement rationale, and it is more likely that a mandatory vaccination policy will be deemed legally valid and enforceable for those workplaces.
One interesting exception for employees not dealing with vulnerable populations but where the threshold of a Bona Fide Occupational Requirement may still be met, is when it comes to staff required to travel out of province or out of country as an essential part of their job. If travel is necessary for the employee to perform their duties, and there are no viable alternatives, then it could be viewed as reasonable to require vaccinations for this group of employees. The caveat being that any employee who cannot receive a vaccination for medical or religious reasons would still require an exemption (accommodation).
Employers who do not have reasonable justification that vaccinations are an occupational requirement for their employees, may instead consider methods to best keep workers safe via personal protective equipment (masks etc.), hygiene, safety protocols and distancing in the workplace- which may include limiting the amount of staff in the workplace at any given time. This could be accomplished through staggering shifts, or where staff may work from a home office, allowing for this part of the time or even on a full time basis. The key takeaway is that a mandatory vaccination policy is not likely to be deemed practicable outside of high risk workplace environments.
Educate, Encourage, Incentivize
For those employers who do not fall into a category where there is a Bona Fide Occupational Requirement for employees to be vaccinated, there are effective policy options employers may pursue that include components of education, encouragement and incentivizations.
Incentive programs that offer employees a reward in exchange for obtaining vaccination are an excellent way of encouraging employees who may be hesitant to receive the COVID-19 vaccine. The key is to find an incentive that is meaningful to your staff: an extra day of paid vacation day is popular, as is a monetary incentive. For those employees who are medically unable to receive the vaccination, they must also be able to receive the incentive (you could for example, require employees in this category to sign off on the company's employee COVID-19 safety policy as eligibility criteria).
When adopting an Encourage and Incentivize policy, many employers wish to know if they can ask employees if they have been vaccinated or plan to be. The short answer is no, employers cannot ask employees to disclose personal medical information such as vaccination status. However, if an employee volunteers this information as part of an incentive program, then that is perfectly acceptable. Businesses must ensure that vaccination information disclosed is kept private and stored in a location accessible only by the person(s) the organization has designated to function in an HR capacity. The information may not be disclosed to other staff members or made public in any way.
Employers must be cautious when implementing any type of vaccination encouragement and incentive policy, to ensure that individuals who choose not to or who cannot receive the vaccination for legitimate reasons, are not subjected to harassment or bullying by other staff members. While it may seem like an appealing strategy to allow staff members who have been vaccinated to encourage other employees to also receive the vaccination, it is important to protect against the potential for shaming or bullying, by clearly addressing this area (what is expected and what is not OK) in your internal policy. It is the employer’s duty to ensure there is no blatant or inadvertent discrimination against employees who have not been vaccinated. This includes shaming, complaining, snide comments or teasing directed at an employee by their colleagues. Failing to do so may leave the business exposed to an employee claim of harassment or bullying- or discrimination for those employees who are medically unable to be vaccinated. All of which would be difficult for an employer to defend against absent specific measures in place meant to guard against such behaviour.
So... What's the Simple Answer- Can Employers Mandate Vaccinations or Not?
The information and examples described in this article are intended to provide an overview of the scenarios in which employers may reasonably mandate vaccinations as well as the situations where it would cause significant risk to a business to try to adopt such a policy. The simple answer is that for some industries, and for some subsets of employees, required vaccination is likely to be legally enforceable and defensible against a variety of claims and complaints, but for other types of employers and industries it is inadvisable.
Do you have a question about drafting a vaccination policy for your business? Please contact Sarah Barclay at: firstname.lastname@example.org or 416-797-7272 for information or assistance.
*Disclaimer: this article is not intended to offer legal advice or recommendations to any specific employer, industry or business. For advice relevant to your particular business circumstances, we would be pleased to provide a consultation.