The COVID-19 pandemic continues to create new and difficult challenges for employers. As we turn the page to 2021, many organizations are now considering whether or not they can require employees to be vaccinated as a condition of continued employment. Canadian legal rules on mandatory vaccination are currently unclear, so the specific approach to follow will need to be developed in the coming months.

Limited Existing Statutory Obligations

The existing legal statues in Canada already provide at least some support for the concept of mandatory vaccinations. An example is the rules set out in various Ontario statutes, including for child care, long-term care and ambulance services. In each case, Ontario imposes legal requirements that relevant workers be immunized based on prevailing practices or directives. There are also comparable rules in place which generally require school-aged children to be vaccinated. Canada also has federal law requirements that certain workers engaged in vaccine manufacturing be themselves vaccinated.

These current rules are, however, intended to address the specific health and safety concerns of identified groups of workers or students who are at greater risk of being exposed to or transmitting infectious diseases. The whole point is that there is a limited group who essentially are the high-risk population, which thus justifies unique rules which are limited to the specific population.

While there have not yet been any COVID-19-related laws introduced to address the specific risk of this particular virus, there may be an expansion of existing laws to address certain categories of workers, either as currently in place or for some larger group. However, given the concept of limiting the rules to those most at risk, the existing rules will not necessarily be the basis to impose a “one size fits all” approach to all employers, and instead a more close review of circumstances will likely prevail.

Selected Rules May (or May Not) Be Enforceable

There have been a number of Canadian legal cases involving challenges to employer policies which have attempted to implement mandatory vaccinations. These cases are potentially distinct from the current context of the COVID-19 pandemic for a number of reasons, including that: 1) the group of workers covered by relevant policies has usually be in the health care sector (ie. a group which is subject to the same considerations are the statutory rules referred to above); 2) the employers have been able, at least in some cases, to assemble compelling medical or scientific evidence to support their policy – not something which is currently easy to do with respect to COVID-19; and 3) the contested policies have involved rules which operate on a “Vacinate or Mask” rule (a so-called “VOM Policy”), meaning that those who wish to refuse to be vaccinated essentially have a route to compliance by wearing a mask. At present, the effectiveness of vaccines, masks or other measures is still potentially subject to being disputed. That said, the existing cases do seem to suggest that protecting the health and safety of employees and the workplace are genuine and proper interests which deserve protection. This then suggests that employers will need to build their case, using objective and expert evidence, about the legitimate reasons for implementing any rules or requirements related to vaccination.

Occupational Health and Safety Considerations

Canadian health and safety legislation provides that employees have the right to a healthy and safe workplace. This employee right is twinned with an employer duty to protect employees from work-related illness or injury, and to provide a safe workplace. To fulfill this duty, employers are required to take precautions to meet reasonable health and safety standards, which can include the introduction of measures to limit the spread of infectious diseases. This employer duty to protect employees and the workplace will be subject to reasonable limitations, so it will not be possible to baldly assert a health and safety rationale without appropriate supporting evidence. In other words, many of the same considerations which apply to the development of a policy, including the need for objective medical evidence, will also be important.

Human Rights Considerations

It is possible that employees may object to a mandatory vaccination rule by claiming human rights protections. Canadian human rights legislation might be invoked, based on the assertion that certain individuals may refuse to be vaccinated as a result of their creed (religious belief) which opposes certain medical treatments. This argument has not been fully tested, and employers are likely to be quite cautious about actually accepting this rationale. Under some existing Canadian laws which mandate vaccinations for children, there is a requirement to provide a written statement, which is subject to challenge, to support a claim for an exemption from vaccination. This topic provides a further reason for employers focus on the medical support for the approach which is followed.

Privacy Considerations

Employers should anticipate that some employees will invoke privacy rights as part of opposition to mandatory vaccination rules or a VOM Policy. The legal analysis here will likely be similar to what has been applied in Canadian workplace drug testing cases, with a focus on balancing organizational and employee interests. In on leading decision involving a VOM Policy, the arbitrator said that this approach did not breach of employee privacy rights. The key was that the policy, which applied to health care workers during flu season, was a properly constructed safety measure which had been implemented for legitimate reasons, including the protection of patients. As a result, any potential harm to the privacy interest of the health workers was justified. It should be emphasized, however, that a VOM Policy, which allows for the “opt out” from vaccination by wearing a mask, is less intrusive than an immunization requirement, which could be seen as an extreme intrusion.

Takeways for Employers

Canadian employers will soon be confronted with needing to decide whether they will make vaccination mandatory. At the law currently stands, there is no clear guidance about the enforceability of any particular approach. There are, however, likely to be some complications if an employer insists on vaccination as a condition of ongoing employment. In any event, there appears to be a consensus that the current risks may support a more strict approach, which essentially would allow for fairly narrow exceptions, such as religious accommodation. To achieve the most sensible and consistent outcome, there will need to be proper scientific and medical support for relevant rules, and the policy itself will likely require periodic review and revision. In all cases, proper objective evidence will help provide the rationale for the employer’s decision about a key health and safety decision. Proper consideration of medical and scientific information will also mitigate what might otherwise be an effort by some to resist vaccination based on grounds such as privacy issues. As these issues evolve, it will be important to review the specific workplace and relevant risks which are unique to that workplace.