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CAN EMPLOYEES BE FORCED TO TAKE THE COVID-19 VACCINE?

As Canadians anxiously await the arrival of approved vaccines for COVID-19, employers and employees are beginning to examine how this might impact the workplace.

Vaccines have long been a divisive issue. While everyone is entitled to their own opinion, government mandates and workplace safety laws do not wait for the collective opinion to find a consensus.

This article will review workplace safety laws regulating Ontario employers regarding both COVID-19 and vaccines in general, to outline how the COVID-19 vaccine might be managed in workplaces across the province.

Vaccines and COVID-19 Testing in Ontario

            “Vaccine or Mask” Policies Prior to the Pandemic

The 2018 Ontario grievance arbitration decision in St Michael's Hospital v Ontario Nurses' Assn (Vaccinate or Mask Policy Grievance), [2018] OLAA No 292, determined that the Hospital’s “Mask or Vaccine” policy was unreasonable. This policy required that nurses either receive the influenza vaccine or wear a surgical mask for the entirety of their shift. Evidence presented in this case showed that forcing healthy nurses to wear a mask during the influenza season did nothing to prevent transmission of influenza in hospitals.

However, in our view, it is unlikely we will see a similar decision in what is a very different era of COVID-19. Throughout the ongoing COVID-19 Pandemic, masks have already been made mandatory for healthcare workers and these employees are first in line to get the new COVID-19 vaccines.

            COVID-19 Testing Policies

A very recent, unpublished Ontario Arbitration decision, Christian Labour Association of Canada v Caressant Care Nursing & Retirement Homes released on December 9, 2020, challenged the employer’s policy that all staff at its retirement home must be tested for COVID-19 every two (2) weeks. Arbitrator Dana Randall dismissed the grievance, ruling that the tests were reasonable given all the circumstances. The test was different from many alcohol and drug testing policies which have been found to be unreasonable, as intoxicants are not infectious. In weighing the privacy breach against the safety goals of the policy, the Arbitrator considered it important that it is not in dispute that COVID-19 is highly infectious and often deadly for the elderly who live in contained environments.

            Vaccine Mandates in Ontario

Ontario has made vaccines mandatory in some settings. Ontario’s Immunization of School Pupils Act requires that children and adolescents attending primary or secondary school be appropriately immunized against a list of nine (9) designated diseases. The requirements for a valid exemption under this Act are as follows:

• Medical Reasons: A 'Statement of Medical Exemption' form must be completed, signed by a doctor or nurse practitioner, and submitted to a local public health unit. The reason for the exemption must be indicated, such as a medical condition that prevents the child from receiving the vaccine; or
• Conscience or Religious Belief: An education session must be completed at the local public health unit that covers basic information about immunization, vaccine safety, immunization and community health, and immunization law in Ontario. A 'Statement of Conscience or Religious Belief' form must be completed, signed by a commissioner for taking affidavits in Ontario, and submitted to the local public health unit.

So, where does this leave us with COVID-19 vaccines in the workplace?

The COVID-19 Vaccine

Employers and employees alike are justifiably concerned with the effects of vaccines on workplace health and safety, human rights, and privacy. The big questions yet to be answered are focused on how much control employers will have to mandate vaccines or prevent unvaccinated people from attending the workplace.

Can employees be forced to take a vaccine?

Whatever vaccine we are discussing, no one can know whether it will be safe for everyone to take. Vaccines have caused issues for people with pre-existing health conditions. As such, employers cannot force an employee to take a vaccine.

Can employees be held out of work for not taking a vaccine?

Pursuant to the Occupational Health and Safety Act, employees have the right to safety in the workplace. Correspondingly, employers have a duty to protect employees from work-related illness or injury. To fulfill this duty, employers often take precautions to meet reasonable health and safety standards, which can include the introduction of policies and guidelines to limit the spread of infectious disease in the workplace. Despite this, an employer’s duty to protect an employee in the workplace has reasonable limitations.

Employers may, in some circumstances, be permitted to remove an employee from the workplace to prevent them and others from being infected with COVID-19. This will depend on the safety risks in each case.

Can employees be terminated for refusing to take a vaccine?

Employees can be terminated for violating public health guidelines that would contribute to an unsafe workplace. A recent arbitration decision in Garda Security Screening Inc. v. IAM, District 140 (Shoker Grievance), [2020] O.L.A.A. No. 162 involved an employee who was terminated for violating the employer’s and public health’s COVID-19 guidelines at work. In this case Arbitrator Keller found there was cause for termination when the grievor chose to attend work on the same day that she had been tested for COVID-19, while awaiting her results.

Despite this ruling, it is unlikely that a refusal to take a vaccine may be considered sufficient cause for termination in itself. Further, terminating an employee for this reason may be in conflict with the Ontario Human Rights Code. For instance, in the event of a termination stemming from a COVID-19 vaccine refusal made for a valid reason, such as medical exemption or religious belief, the termination could amount to a human rights violation.

The Bottom Line

COVID-19 is presenting unprecedented health and safety challenges for employers. While Ontario has not been shy to mandate certain vaccines in schools (a list which COVID-19 may potentially be added to), a massive policy change would be required to mandate vaccines for all workers in the province.

It is unlikely that employers will be able to make a COVID-19 vaccine mandatory as a condition of employment. With that said, many employers may strongly suggest that their employees get vaccinated for COVID-19 to decrease the chances of spread in the workplace. In addition, employers will need to continue to monitor public health guidelines to ensure their workplace is compliant with all health and safety regulations as we see a shift in the scientific outlook of COVID-19 with the rollout of vaccines.

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