The short answer is it depends. Mandatory workplace vaccination policies can be part of a larger program for preventing workplace spread of infectious diseases. However, such policies are usually only enforceable where they:
- Are based on evidence demonstrating:
- a serious risk of infection in the workplace, and
- the effectiveness of a vaccine or alternative measures in preventing the spread of infection.
- Achieve a balance between workplace safety, employee privacy, and human rights protections.
While workplace-related vaccination caselaw predates the COVID-19 pandemic, it is not an ideal comparator because it largely concerns vaccination policies for seasonal influenza. The high evidentiary standard applied in those cases may not apply in the COVID-19 context.
In part, this is because COVID-19 is not like seasonal influenza. It is a more dangerous virus, and a confirmed workplace case can result in quarantine orders and business closure. Even where there are no cases of COVID-19 in a workplace, most businesses are required to operate under stringent infection control measures that may interfere with productivity and morale.
If the employer has the duty to keep the workplace safe, then can COVID-19 vaccination be made compulsory to fulfill that duty?
A vaccination policy must balance interests arising under several laws and workplace norms. For some specialized occupations, employers are expressly required by legislation to ensure employees have up-to-date vaccines. For example, in Ontario vaccination is a legislated requirement for paramedics, child care centre employees, and long-term care home employees.
Public health legislation also grants provincial public health authorities broad discretion to order mandatory vaccination or other actions to control outbreaks of communicable diseases. See for example, sections 22(1) and 29.2 of Ontario’s Health Protection and Promotion Act, R.S.O. 1990, c. H.7.
COVID-19 and its vaccines are relatively new and there is very little scientific information to rely on in developing vaccination policies. Given this high risk and lack of information, employers may consider taking a precautionary approach – adopting safety measures to limit COVID-19 infection risk even if experts are not certain those measures are effective.
Where employee vaccination is not a legislated requirement it may still be required to meet an employer’s obligations under occupational health and safety (OHS) legislation and public health legislation. Reasonable steps to guard against workplace infectious disease hazards may include requiring employee use of personal protective equipment (PPE) and, where appropriate, employee vaccination. Whether these precautions are reasonable is a fact-driven matter for each workplace.
If a workplace does not contain high-risk populations, and business operations have continued throughout the pandemic without serious interruption through the use of alternative measures, it may be difficult to justify a new mandatory vaccination requirement. As the pandemic eventually eases, it may be more reasonable to allow individuals who decline vaccination to continue working under alternative measures
Adjudicators are showing their willingness to err more on the side of workplace safety than on the side of employee privacy as the pandemic wears on. Employers need not wait for COVID-19 to prove itself as a serious risk in the workplace before taking action by requiring vaccination or reasonable alternative measures.
However, taking a precautionary approach does not mean abandoning respect for employee privacy and human rights. A balancing approach is still required.
Is there Human Rights protection with regards to mandatory workplace vaccination?
Yes! The Ontario Human Rights Code makes specifies protected grounds that could be triggered by insisting on compulsory covid vaccination. If an employee is unable to comply with a vaccination policy for a reason protected by human rights legislation, the employer must respond through workplace accommodation. For example, an employee might refuse vaccination due to:
- A disability which prevents them from receiving a vaccination (referred to as medical “contraindication” in vaccination literature).
- Religious beliefs which forbid receiving a vaccination.
In these circumstances, the employer must explore alternative infection control measures or alternative duties that allow the employee to continue working. Whether alternatives are available depends on the facts of the workplace and the nature of the COVID-19 infection.
The employer must accommodate the employee to the point of undue hardship. Accommodation is only required where the employee can prove a valid human rights basis for objecting to vaccination or alternatives.
Update: On September 22, 2021, the Ontario government’s Proof of Vaccination, or “Vaccine Passport” program came into effect. On that same day, the Ontario Human Rights Commission (“OHRC”) put out the “OHRC policy statement on COVID-19 vaccine mandates and proof of vaccine certificates” which provided the OHRC’s official stance on the legality of COVID-19 vaccine requirements, both in public spaces and workplaces. This policy statement expresses that the OHRC generally views vaccination requirements as permissible and in compliance with the Human Rights Code, but there is a duty to accommodate if an individual cannot be vaccinated for medical or disability-related reasons. However, the policy statement also makes clear that the OHRC does not view “personal preference” as a protected ground warranting accommodation under the Code.
In its guidance, the OHRC commission stated that: “Even if a person could show they were denied a service or employment because of a creed-based belief against vaccinations, the duty to accommodate does not necessarily require they be exempted from vaccine mandates, certification or COVID testing requirements. The duty to accommodate can be limited if it would significantly compromise health and safety amounting to undue hardship – such as during a pandemic.”
This article was written by Monkhouse Law Employment Lawyers in Toronto. We provide free 30-minute phone consultations and can help in assessing your legal options and rights.
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