May 20, 2021
When it comes to the COVID-19 vaccine, some U.S. employers are taking a hard line. Some say employees who don’t get the jab will be shown the door. Others are listing vaccination as a mandatory requirement for new hires.
In Texas, the Houston Methodist Hospital network has made COVID-19 vaccines mandatory for all staff. And Delta Air Lines recently said it will require all new hires in the United States to be vaccinated against COVID-19.
But what’s happening south of the border isn’t an indication of what employers are allowed to do in Canada, labour law experts say.
Here’s what two employment lawyers had to say about whether employers can make vaccines compulsory or demand to know whether employees have taken the shot.
Can employers demand vaccination?
While employers can make vaccines necessary in their policies, whether those requirements would hold up if challenged is another matter, says Hermie Abraham, an employment lawyer and the owner of Advocation Professional Corporation.
Because the federal and provincial governments have so far refrained from making the COVID-19 vaccine mandatory, it’s “unlikely” that workplace policies that do so will stand if tested in court or through arbitration, Abraham says.
Requiring a medical procedure such as a vaccine could be considered a breach of privacy or a human rights violation, says Lior Samfiru, partner at Samfiru Tumarkin LLP.
A legal kerfuffle between Toronto’s St. Michael’s Hospital and the Ontario Nurses’ Association (ONA) is a recent legal precedent for whether employers can mandate vaccinations, both Abraham and Samfiru say.
In 2018, an arbitrator struck down a policy by St. Michael’s to force nurses who had not received the flu vaccine to wear surgical masks following a grievance filed by the ONA.
Arbitrator William Kaplan called the policy “unsustainable” and “illogical” given poor evidence that surgical masks prevent transmission of the flu and that the hospital did not require unvaccinated visitors to mask up, among other reasons.
Still, both Abraham and Samfiru say there are scenarios in which employer policies requesting vaccination against COVID-19 would stand on firmer legal ground.
Abraham cited the example of a salesperson who must routinely travel outside Canada. If vaccine passports were to become mandatory for international travel, an unvaccinated employee might become unable to do their job, she notes.
In the U.S., Delta has noted that employees who are not vaccinated may not be able to work on international flights given possible entry requirements by other countries.
In Canada, if an employee’s choice not to be vaccinated prevented the person from being able to perform core duties of the job, an employer would have to perform a two-step analysis, Abraham says.
In a situation where the choice was motivated by religious or health reasons, the employer would have to a so-called “duty to accommodate to the point of undue hardship,” she says. This might involve allowing the employee to interact with international clients via teleconference, modifying the role so that only domestic travel is required or moving the worker to another role suited to their skills and experience, if possible.
However, if there is no workable solution, or if the employee has no religious or health grounds for declining to be vaccinated, “there would be what we call ‘a frustration of contract’,” Abraham says. In such a scenario, employers would likely be able to end the employment contract with limited liability, she adds.
And, of course, if the government issued new rules mandating vaccinations in certain workplace settings or for specific roles, employers would be justified in implementing policies that comply with those requirements, Abraham and Samfiru say.
Quebec’s Ministry of Health, for example, issued a decree in April establishing that some salaried healthcare workers will have to show proof that they have received the COVID-19 vaccine. Those who decline to do so may be assigned to different job duties or put on leave without pay.
In unionized workplaces, employers and unions may also come to agreements that demand proof of vaccination for new hires, Abraham says.
However, she adds, “I don’t see that happening as much in a non-unionized workplace.”
Can employers ask about the vaccine?
If requiring that employees get the COVID-19 shot is complicated, so is asking whether they are vaccinated or not.
If Canadian health authorities were to issue guidelines saying only full-vaccinated people are allowed to mingle indoors without a mask, then it would be appropriate for employers to ask who received the shot to decide what workplace measures to put in place, Samfiru says.
In the U.S., the Centers for Disease Control and Prevention recently issued guidance indicating that fully vaccinated people can resume activities in any setting without wearing a mask or physically distancing. There are no such guidelines at the moment for Canada, where the share of those who have received the full dose of the vaccine is still below four per cent of the population.
But employers asking for proof of vaccination is a “slippery slope,” Abraham says. The requirement might result in employees feeling the pressure to have to share personal health information that goes beyond the vaccine, she adds.
“For example, I might be in the early stages of pregnancy and don’t want to get the COVID vaccine, but I don’t want to disclose it to my employer,” she says.
Employers should also think about who they’d be trying to protect with policies that either mandate vaccination or ask employees to share whether they were vaccinated or not, she adds. The vaccine has primarily been made to protect those who are vaccinated, she notes.
And there are already well-tested protocols employers can use to limit the spread of COVID-19 in the workplace, such as implementing mandatory testing or demand that those who exhibit COVID-19 symptoms self-isolate, she adds.
Still, Abraham warns of how the issue of vaccination might play out once more Canadians are allowed to return to the office.
“The whole COVID vaccine and stay-at-home orders — they’ve been very polarizing,” she says. “There is a potential for conflict in the workplace as it pertains to employees taking the law into their own hands.”
On both sides of the vaccine divide, the concern is workplace harassment and bullying, she says.
Samfiru, for his part, sees trouble brewing for employers who are taking a heavy-handed approach to vaccination.
“I’ve received a number of calls over the past couple of months from individuals who have been given these ultimatums from their employer: get vaccinated or else,” he says.
“I think these employers will find themselves on the wrong side of a wrongful dismissal claim.”