In recent months, the COVID-19 vaccine has become widely accessible across Ontario and Canada, where officials at all levels of government have strongly encouraged Canadians to get vaccinated. Since there is no law mandating it, however, what are the rules when it comes to the workplace?
Mandatory vaccinations in the workplace are now a topical issue for discussion, especially with the United States Equal Employment Opportunity Commission stating that US businesses can now mandate employee vaccinations. Locally, recent Ontario headlines have identified several banks and private companies announcing mandatory COVID-19 vaccinations for all employees, including the Royal Bank of Canada and Toronto Hydro. Likewise, several levels of government declared mandatory vaccination in specific contexts, including healthcare and education. On August 20, Toronto’s Medical Officer of Health, Dr. Eileen de Villa, also strongly recommended that local employers institute a workplace vaccination policy to protect their employees and the public from COVID-19. Yet, several employers appear hesitant to implement mandatory vaccination policies.
Since we are in uncharted waters, businesses struggle to find the right balance between competing rights and duties. Employers have a duty to provide a safe workplace environment under the Occupational Health and Safety Act and must also reassure employees, customers, clients, suppliers, and the general public that it is safe to interact with staff. Equally, they must provide their employees with human rights protections under the Ontario Human Rights Code (OHRC), privacy rights under federal legislation, and in some cases, constitutional Charter rights. So, what does that mean for Ontario-based small and mid-sized employers?
Vaccination Policy
Essentially, in most cases, employers can require that an individual be vaccinated to work. Since most non-unionized Ontario employees that are not federally regulated do not have job protection, they can be dismissed “without cause”. This means that if a mandatory vaccination policy is implemented and an employee breaches the policy through vaccination refusal, it can lead to termination. However, in this case, the critical point is that terminated employees will be entitled to compensation (i.e., severance) in many cases.
That said, employees who have religious or medical reasons that prevent them from being vaccinated are protected from dismissal under human rights legislation – any workplace vaccination mandate must allow refusal for these grounds. Equally, employers must bear in mind employees' rights to privacy regarding personal health information, including vaccination status. A legitimate workplace purpose must necessitate the need for obtaining an employee's vaccination status.
In some cases, workplaces may require a COVID-19 vaccination as a bona fide occupational requirement, where employees cannot work from home. In such an instance, accommodating an employee who refuses the vaccine based on a prohibited ground of discrimination under the OHRC can create an undue hardship on the employer, where the employer may have grounds to terminate the employee due to breach of vaccination policies. Suppose an employee refuses the vaccine due to an "anti-vaxxer" stance and is not protected by human rights legislation. In that case, an employer can terminate said employee(s) since the employer has an obligation to protect their employees.
Conclusion
Bearing all this in mind, it is hard for employers to justify a mandatory vaccination policy if employees can work from home or maintain health guidelines within the workplace while properly executing their role. Vaccination policies are widely complicated, and employers must be cautious if implementing such a policy within their business. Employers are encouraged to seek consultations from employment and human rights lawyers if implementing a vaccination policy to ensure compliance with the relevant legislation.
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