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  • David K Law

Facing the Vax

Canadian organizations are examining whether to make the COVID-19 vaccine mandatory for their employees. This article discusses employer options and risks.

Background to the Issue

Public health advice and all of the available evidence tell us that the approved vaccines dramatically reduce the chance of a person acquiring the Novel Coronavirus, spreading that virus or becoming seriously ill with COVID-19. The vaccines are safe and effective against the current strains of the virus.

The availability of vaccines has already dramatically changed life in the age of COVID: people are free to congregate safely for personal, social and work activities. Canadian jurisdictions are adopting “vaccine passports” to enable vaccinated people to gather. Requiring "passports" to attend work would seem to be good occupational health and safety (“OHS”) practice.

Of course, “work vaccine passports” are not yet mandatory in our workplaces, so Canadian employers must assess whether and how to require COVID-19 vaccination for their employees. A simple, blanket policy may be attractive but it must allow for exceptions (based on human rights considerations). Further, if people have been performing their duties ably for many months from home, employers may be faced with some reasonable questions, like “why do you need me in the office?”

To that, most employers can accurately say “your contract has always required you to attend work and that’s our preference.” Enforcing that preference, however, may lead to conflict. How to deal with such conflict will be the challenge of mandatory vaccination regimes at work.


Recent Federal Guidance

The Government of Canada has jurisdiction over employment insurance in Canada, so its guidance on EI eligibility is of great interest and use to employers considering whether and how to adopt vaccination policies that could affect individuals’ employment status.

On October 15th the Federal Government published new guidance on how to complete a Record of Employment (“ROE”) for a person released from their job, due to a refusal to be vaccinated. Where an employee will not comply with a mandatory vaccination policy, the employer is presented with these options:

  • If the employee won’t attend work because they won’t be vaccinated, an employer may treat them as being “on leave.”

  • Alternatively, the same person could be regarded as having “quit.”

  • Or if the employer takes the initiative to suspend or terminate the individual, the matter is a “dismissal.”

Social Development Canada warns employers that they should be able to answer these questions about these matters:

  1. if you had adopted and clearly communicated to all employees a mandatory COVID-19 vaccination policy

  2. if the employees were informed that failure to comply with the policy would result in loss of employment

  3. if the application of the policy to the employee was reasonable within the workplace context

  4. if there were any exemptions for refusing to comply with the policy

Those four questions aren’t relevant to EI eligibility alone, but also reflect the larger issues that an employer must consider to satisfy contractual, statutory and Common Law obligations to employees. While hardly a perfect questionnaire, the four questions are a helpful tool in assessing how to manage a case.

Before looking at how to apply those questions, we will offer this caution: unless an employee actually says the words “I quit” or something like that, it is dubious to say that they quit. A more accurate and probably honest description of these cases, most of the time, will be that the employer has dismissed them for refusing to obey a new policy or rule.


Communication of Policy and of the Consequences


Questions 1 and 2 of the Social Development guidelines deliver a helpful reminder to employers about their duties to employees: it is important to communicate new policies to people, so that they know and understand them and it is important that people understand the consequences of non-compliance.

“Communication” goes beyond telling people they must deliver proof that a needle was stuck in their arm. It means explanation – giving employees the best available facts, or pointing them to those facts, so that they understand that the vaccines offer a huge benefit not only in the workplace, but of course also at home and elsewhere.


In policies drafted by LAWatWORK, we underscore several key points:

  • Each worker is legally responsible for his or her own safety at work;

  • They’re also responsible for the safety of others;

  • The employer has a duty to protect all of them from risks, by providing the equipment, instruction, supervision and best practices necessary;

  • The vaccine is a critical workplace safety instrument, so is appropriate in most if not all places where people gather to work;

  • It will therefore be mandatory for most people, in most places;

  • · Refusal to deliver proof of vaccination will be interpreted as proof that the person is not vaccinated;

  • To be unvaccinated is to pose a danger to oneself, co-workers and visitors to the workplace;

  • That demonstrates poor judgment, is unsafe conduct and is insubordinate.

From there, an employer has to spell-out the consequences of the individual’s unwise, unsafe and insubordinate conduct: loss of employment. However, this cannot apply automatically, to every employee in every situation. As the Feds suggest, there are going to be situations where mandatory vaccination is not necessary. In which case, “punishment” for being unvaccinated will, we think, likely constitute a breach of contract by the employer.


Is mandatory vaccination necessary for this employee?

The key question posed by the ROE questionnaire is really #3: was it reasonable to impose mandatory vaccination as a job requirement on the individual? If being vaccinated isn’t really necessary to a person’s work then an employer will have little basis to impose the obligation on them.

Personal attendance at work is absolutely necessary in many industries: workers who work in factories, kitchens, stores, those who build or renovate – most of our economy – require people to gather at the places where their work is situated. Even then, however, in circumstances where a worker is completely isolated from others, she might not really need to be vaccinated to limit her risk of being infected, or of infecting someone else.

If we were to suddenly demand that people wear steel-toed boots, hardhats, yellow vests and fall arrest equipment in the office every day that would likely not seem “reasonable” in many (or any) workplaces. Similarly, mandatory vaccination will not be reasonable if a person’s work does not put them or others at true risk of infection.

As we discovered during the first year of the pandemic, millions of workers are capable of performing most of their essential duties without having to gather or meet in person. Our success in enabling work from home (“WFH”) poses a legitimate question as to whether returning to the office (“RTO”) is really necessary in all cases.

It is true that many organizations simply prefer to have people assembled at work, rather than working remotely. At present, that is a preference most employment contracts allow an employer to enforce on pain of discipline or termination, except where the law (such as human rights legislation) demands an employer attempt to accommodate WFH. What employers must decide now is whether they want to enforce their preference for RTO when it isn’t demonstrably necessary to produce results.


Exemptions

The term “exemptions” does not include circumstances where the vaccine isn’t strictly necessary, but rather cases where an unvaccinated person is permitted to work in an environment where vaccination is deemed necessary.


Legally Necessary

The most pressing legal duty to grant exemptions comes under human rights law: if an individual has a disability that makes the vaccine dangerous to them, the employer’s duty to accommodate compels them to consider whether and how the person can be enabled to work safely, without the vaccine.

The first step in this analysis is to obtain credible, objective medical evidence that the disability exists and that the danger is real. As people are discovering, this is not as easy or common as was expected: there is little evidence that the vaccine poses a medical risk to anyone.

Another human rights concern often expressed is one of religion or creed, but again it appears there are very few legitimate religious objections – in any faith – to vaccination.

In rare cases where exemption may be justified by disability or faith, the employer must then examine whether accommodation is possible. This will be a fact-dependent analysis (how much personal interaction is involved in the employee’s work? can we obtain frequent, reliable and up-to-date COVID test results for the employee to track whether they pose a risk? And so on.)


Voluntary

An employer can choose to exempt anyone from a vaccine requirement, even where there are no compelling medical or other grounds for it. However, this poses a serious risk to the credibility and legal viability of the whole policy, and anyone who suffers negative consequences for refusing to be vaccinated will have excellent proof that the company did not really think the policy was necessary.


Conclusion

Mandatory vaccination policies are not yet a legal obligation for employers, but have clear workplace and public health benefits in many situations. They constitute good OHS policy in many workplaces.

There are millions of workers whose jobs require in-person participation at a workplace. In most of those cases it will be reasonable for an employer to make vaccination against COVID-19 a requirement for such employees.

The policy should not be one-size-fits-all but rather, tailored to the work circumstances of people. What each employer must do first is answer the question: is vaccination really necessary for this person to perform their job? By “necessary” we mean “will it substantially reduce the risk to the person and/or others in the workplace?” If the answer is “yes” then the policy should apply to that position.

There will be rare situations where an employee qualifies for a disability or other human-rights related exemption from the rule, but then the employer must decide whether it can safely accommodate the individual through other means (constant testing, workplace isolation, more extreme PPE, etc.).

Safety rules are rarely optional and for good reason. An employee’s conscious refusal to comply with a safety rule like mandatory vaccination – where that standard is reasonable – can be construed as a form of serious, wilful insubordination.

If an organization adopts a mandatory vaccination policy, it should be clearly explained to people and employees must be advised of the consequences of non-compliance. Often that will be termination from employment. An employer may “suspend” an employee over this, but under the Common Law most suspensions constitute a constructive dismissal. This will seldom really be a case of someone “quitting” their job.


For specific advice on cases you’re dealing with, contact LAWatWORK.



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