Can Your Employer Require You to Get the COVID-19 Vaccine Before Returning to Work?

Since 2019, workplaces around the world have adjusted how they do business in safe and healthy ways due to the COVID-19 pandemic. As vaccines become more widely available in Canada, employers and employees are wondering what their legal rights are for implementing, enforcing, and complying with company vaccination policies.

There is no short answer to whether employers can require COVID-19 vaccinations for their employees. Mandatory vaccination in the workplace depends entirely on the risk of infection, availability of vaccines, and whether other employment laws and workplace regulations are followed.

While Canada’s vaccination roll-out is steadily increasing, some areas and individuals may not yet have access to the COVID-19 vaccines. Mandatory vaccines cannot be required for a workplace if vaccines are not readily available for employees.

If you are an employer looking to understand your workplace risks and your rights to implement a mandatory vaccination policy, be sure to contact an employment lawyer who can help with your questions and needs.

Are COVID-19 vaccination policies allowed under employment law?

Under Ontario’s Occupational Health and Safety Act, employers are required to maintain a safe workplace that protects the health and safety of employees.

For some industries, COVID-19 vaccinations are a legislated requirement for workplace safety. For example, frontline workers in Ontario are required to receive the COVID-19 vaccination under the Public Health Act. This includes long-term care home staff, paramedics, and childcare centre employees who regularly interact with vulnerable populations.

In these instances, an employee’s position can be terminated if they do not receive the vaccine unless their refusal is protected under the Human Rights Code.

If a workplace does not fall under the Public Health Act vaccination legislation, a mandatory vaccination policy could still be implemented to meet an employer’s occupational health and safety obligations.

What should employers consider when implementing a vaccination policy?

When implementing a mandatory vaccination policy, employers must assess the risks within their workplace. Employers should consider:

• The risk of outbreaks within the workplace,
• Employee interactions with high-risk populations,
• The ability to use alternative measures like social distancing and masks, and
• Any consequences for employees and the workplace if vaccinations are refused.

If the workplace is at low risk of exposure to COVID-19, a mandatory vaccination policy is difficult to justify and uphold legally. However, employers can strongly encourage vaccination and may choose to change or reduce the duties of employees who refuse vaccination.

In addition, employers may use other methods of risk reduction like masks, frequent sanitization, social distancing, and other personal protective equipment as an alternative to a mandatory vaccination policy.

What human rights protections apply to mandatory vaccination policies?

An employee has the right to refuse a workplace’s mandatory vaccination requirements under the Human Rights Code. The employee’s refusal may fall under the following reasons:

• Religious beliefs that prohibit vaccination
• Documented disabilities or medical exemptions that make them unable to receive vaccination

If an employee’s refusal to receive the vaccine falls under human rights legislation, the employer must make all reasonable workplace accommodations to allow the employee to continue working. This may include using alternative risk reduction methods like masks and social distancing, allowing the employee to work from home, or changing the employee’s duties to allow them to continue working.

Are there any vaccination precedents in employment law?

While various vaccinations for influenzas and other illnesses exist, COVID-19 is considered a special case since it is a new, highly contagious, and deadly virus. In addition, COVID-19 poses serious threats to business as exposures result in quarantine orders and closures.

Previous legal decisions about mandatory vaccination policies were primarily based on healthcare workers, like nurses and doctors, requiring seasonal flu vaccinations. However, these policies were disputed and ultimately not supported because the influenza vaccine was not deemed effective enough to be made mandatory.

Since COVID-19 is more dangerous than the seasonal flu, this precedent is not the ideal comparison, and it is likely adjudicators will lean more towards the side of workplace safety than employee privacy or personal choice.

Can vaccination requirements change?

As COVID-19 is a fairly new virus and scientific information about both the disease and vaccinations is developing, vaccination requirements will continue to transform.

If mandatory vaccination becomes federally legislated or more information about vaccination effectiveness is discovered, mandatory vaccination policies will update to reflect these changes.

Do you have questions about mandatory vaccination policies?

Rogers & Company Professional Corporation provides a range of services regarding employment law for both employees and employers.

If you need help understanding or implementing vaccination policies, and need an employment lawyer in Oakville, contact our team for advice.