Mandatory COVID vaccination is a controversial issue at the moment.
Children will be returning to school in a couple weeks and many parents want all staff and children over 12 vaccinated.
The federal Liberals announced it is introducing mandatory vaccinations in a number of settings just before it called an election to create a wedge issue with the PC party who is against mandatory vaccination.
Like most employment lawyers, I have been getting calls from employers asking whether they can require employees to get vaccinated for COVID before returning to the workplace.
It is a much discussed issue in legal circles and no consensus has evolved. At least one arbitrator has upheld a mandatory vaccination policy. Seneca College has implemented a policy (which may be challenged by one of the unions) and a number of other post-secondary educations have followed suit. Surprisingly – at least to me – the Ontario government has shown no interest in introducing such a policy in hospitals and long-term care facilities where our most vulnerable are located.
An employer is required to balance its obligations to provide a safe work environment and its obligations to respect an employee’s privacy, human rights and other rights.
Fully vaccinated employees have a much lower risk of getting seriously ill or being hospitalized but they can get the virus and they can pass it on. So for the time being, whether or not vaccines are required an employer should consider other mitigation measures like physical distancing and masking in an indoor workplace unless these measures are required as a result of public health decrees.
Personally I currently don’t have a problem with mandatory vaccination policies which are introduced to prevent the spread of COVID in the workplace subject to the employer’s duty to accommodate on the basis of disability, religion or any other prohibited grounds. The duty to accommodate a disability is subject to the undue hardship test and one factor that is taken into account in this test are health & safety requirements. In this regard, we are on the verge of a fourth wave because of the highly contagious Delta variant and an employer has an obligation to provide a safe workplace under the Occupational Health & Safety Act. Accordingly, health & safety requirements could trump the duty to accommodate in some circumstances. Although possible I don’t think many judges would consider the imposition of such a policy to be a constructive dismissal, unless the issue of vaccination had arisen earlier in the employment relationship and the employer had agreed to waive vaccination requirements.
Some employees are very concerned they will get COVID and give it to their parents and/or children. Fully vaccinated parents – perhaps with underlying or chronic health conditions – can and do still get COVID, and children under 12 years old currently are not eligible for vaccination. Some of these employees will not return to work unless all employees are vaccinated because they will not put their loved ones in (potential) harm’s way.
Because people who choose not to get vaccinated are more likely to get seriously ill they are therefore more likely to use sick credits, short-term disability benefits and/or long-term disability benefits, and are more likely to have ongoing medical claims because of chronic illness caused by COVID. These are costs the employer generally must bear because an employee chooses to put themself at a greater health risk.
For those who believe that mandatory vaccination is too heavy handed then an employer can impose additional mitigation measures on employees who choose not to get vaccinated. One such measure is taking a rapid test before entering the workplace. At the moment, this mitigation measure may not be practical for cost reasons but if an employer is moving to a remote/in office working model where an employee is required to come into the office 2 or 3 days a week then this mitigation measure may be an interim solution to address this controversial issue until case numbers dramatically decrease or increase.
For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416-317-9894 or at [email protected]