Canada: The Pendulum Swings Towards Employer-Driven Mandatory Vaccination Policies

Many employers are beginning to implement mandatory vaccination policies in their workplaces. In doing so, they must balance the risks to their businesses and employees of a workplace outbreak of COVID-19 versus employees' human and contractual rights, along with privacy concerns.

The Employment Law and Privacy Law practice groups are closely watching the laws around employer-driven mandatory vaccination policies. The pendulum has swung towards supporting mandatory vaccination policies in the workplace. This continues to be the case with the province's vaccine passport, which lets the private sector decide whether to require employee vaccinations.¹

Some employees are vehemently against COVID-19 mandatory vaccination policies because of politics and a multitude of other reasons. Other employees are not comfortable attending their workplaces without a mandatory vaccination policy in place. Many employers and employees do not want a fall lockdown this year, closing businesses and schools, that is preventable with more widespread vaccination.²

Employers are expected to take every reasonable precaution to keep employees safe.³ Some precautions that protect employees against COVID-19 have a smaller impact on their rights. These include physical distancing, frequent sanitization, training, personal protective equipment, staggered start times, and enhanced ventilation. Despite that, many employers are taking more effective but invasive measures to protect their employees by instituting mandatory vaccines and/or testing.

These more invasive measures may be justified by using employers' duty to keep employees safe, depending on the industry and availability of exemptions. In the recently litigated, Ellisdon, the arbitrator held that the implementation of a rapid testing program for COVID-19 in the construction context was reasonable.⁴ Canada's big five banks have mandatory vaccination policies, generally, with testing for those with a genuine exemption or who refuse to disclose their vaccination status.⁵ Air Canada has announced that if its employees do not get vaccinated, they will be terminated.⁶ Similarly, the University Health Network has announced employees will be terminated if they are not fully vaccinated by the end of October.⁷

Some employees will view mandatory vaccine and testing policies as an invasion of privacy and violation of their human rights or will make a constructive dismissal claim. Employers would be requiring employees to undergo a medical procedure, which will very likely lead to human rights litigation. Regarding privacy, employers would be collecting and using personal health information. However, with the province's vaccine passport, which discloses private health information to cinemas, gyms, and restaurants, it is not a big leap to include disclosure to employers.⁸ These policies may also lead to constructive dismissal claims. Vaccination requirements to be employed will likely be considered a unilateral fundamental change in the terms of employment.

Regardless of the specific policy, employers must protect their employees against the spread of COVID-19. We would be pleased to assist employers with the development of these policies. The reasonableness of a precaution to protect against COVID-19 must be assessed on a case-by-case basis, especially with the everchanging state of the law in this area.

Footnotes

1. Lucas Powers & Adam Carter, "Ontario's COVID-19 vaccine passport plan revealed, won't apply to retail", CBC News, (1 September 2021), online: cbc.ca

2. "Coronavirus disease (COVID-19): Herd immunity, lockdowns and COVID-19", World Health Organization, (31 December 2020).

3. Occupational Health and Safety Act, RSO 1990, c O.1, s 25.

4. Ellisdon Construction Ltd. v Labourers' International Union of North America, Local 183, 2021 CanLII 50159 (ON LA) ("Ellisdon").

5. Pete Evans, "Canada's Big 5 banks will mandate COVID-19 vaccines for staff", CBC News, (20 August 2021), online: cbc.ca.

6. Amanda Stephenson "Air Canada's strict new employee vaccine policy could set new workplace bar say experts", CBC News, (27 August 2021), online: cbc.ca.

7. "University Health Network to fire employees who aren't vaccinated against COVID-19 by Oct. 22", CBC News, (20 August 2021), online: cbc.ca.

8. Supra note 1.

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