Federal and provincial governments, private businesses as well as Canada’s biggest banks have in recent weeks announced plans to implement mandatory vaccination policies for many of their returning staff.
These vaccine mandates require their employees to be vaccinated against COVID-19. But do employers have the right to impose such mandates? What if employees refuse?
CBC News looks at the legal issues these mandates raise.
Do companies face legal hurdles in imposing vaccine mandates?
That will likely depend on the particular circumstances that an employer and employee find themselves in, says Toronto-based employment lawyer Alex Lucifero. And the law will differ, he says, based upon a number of factors — for example, the particular industry, or whether the employees are unionized.
“There’ll be a bunch of different factors that will be taken into consideration,” he said. “I imagine eventually there will potentially be different laws for different industries or groups of employees. For that reason, it makes it extremely complex and there is no ‘one size fits all’ answer.”
Employment lawyer Adam Savaglio, a partner with Scarfone Hawkins LLP in Hamilton, Ont. told CBC News that there are many misconceptions and incorrect assumptions about the law around vaccination mandates.
“They can’t necessarily compel, but they can certainly ask for evidence of vaccination because they have an underlying obligation to that worker and others in the workplace to provide a healthy and safe workplace,” he said in an interview.
However, Toronto-based employment lawyer Howard Levitt said that in Canadian law, safety always trumps privacy. That means employers will be permitted by the courts and arbitrators to have compulsory vaccination policies, except for religious and medical exemptions.
Can a company fire an employee who refuses to get vaccinated?
“I believe they have the rights as an employer to mandate it and to terminate people who won’t comply,” Levitt said.
Canada’s biggest banks will require employees who return to the office to be vaccinated or submit to regular testing. (CBC)
Lucifero said someone who refuses to adhere to an employer’s vaccine mandate because of a medical condition or religious belief cannot be fired because that would be considered discrimination under the human rights code.
“But the reality is that your employer can let you go because you haven’t been vaccinated. An employer can actually let you go for no particular reason at all. That’s what we call a ‘without cause’ termination,” he said.
“Your employer doesn’t even need a reason to let you go as long as the proper amount of severance is paid.”
What about charter rights to protect me if I don’t want to be vaccinated?
What’s important for people to understand, says constitutional expert Wayne MacKay, professor emeritus of law at Dalhousie University, is that the Charter of Rights and Freedoms only applies to government action. That means, when it comes to vaccine mandates, the charter only applies for government workers refusing such a decree.
“It doesn’t apply to private businesses or [a] private individual’s actions,” he said. “Statute law does, privacy laws, human rights codes, those kind of things. But only government action is restricted by the charter.“
What charter rights might apply to vaccine mandates?
There are potentially at least three sections of the charter that could be used by a government employee to challenge a vaccine mandate, including Section 7 — the right to life, liberty and security of the person.
That could be cited to challenge “a policy that seems to coerce people into getting vaccinated,” wrote University of B.C. law professor Debra Parkes and University of Ottawa law professor Carissima Mathen in a recent editorial.
However, Bryan Thomas, adjunct professor at the University of Ottawa’s Centre for Health Law, Policy & Ethics, says he believes challenges under Section 7 are unlikely to be successful because that section doesn’t protect an individual’s economic interests or “your ability to retain a job.”
Section 15, which offers protection from discrimination, could also be invoked but Thomas says he believes it would fail as an argument because an employer is not actually discounting anyone’s interests.
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“[They’re] making up kind of this a legitimate form of discrimination and saying, you know, you unvaccinated person pose a great risk to yourself and to others by entering the workplace,” said Thomas.
Section 2A, the so-called religious exemption, or freedom of conscience, could also be applicable.
Parkes and Mathen wrote that this an underdeveloped area of charter law, but could be relevant “where a person has a sincerely held belief that the vaccination is harmful to their health or, in some other way, deeply wrong.”
But Thomas said someone who is vaccine hesitant, for example, couldn’t claim that’s a freedom of conscience issue.
“The courts have a more rigorous test or standard for conscience,” he said. “It has to be something that’s akin to a religion in your life.”
Demands for government intervention in Air Canada labour talks could negatively affect airline competition in Canada, the CEO of travel company Transat AT Inc. said.
“The extension of such an extraordinary intervention to Air Canada would be an undeniable competitive advantage to the detriment of other Canadian airlines,” Annick Guérard told analysts on an earnings conference call on Thursday.
“The time and urgency is now. It is time to restore healthy competition in Canada,” she added.
Air Canada has asked the federal government to be ready to intervene and request arbitration as early as this weekend to avoid disruptions.
Comments on the potential Air Canada pilot strike or lock out came as Transat reported third-quarter financial results.
Guérard recalled Transat’s labour negotiations with its flight attendants earlier this year, which the company said it handled without asking for government intervention.
The airline’s 2,100 flight attendants voted 99 per cent in favour of a strike mandate and twice rejected tentative deals before approving a new collective agreement in late February.
As the collective agreement for Air Transat pilots ends in June next year, Guérard anticipates similar pressure to increase overall wages as seen in Air Canada’s negotiations, but reckons it will come out “as a win, win, win deal.”
“The pilots are preparing on their side, we are preparing on our side and we’re confident that we’re going to come up with a reasonable deal,” she told analysts when asked about the upcoming negotiations.
The parent company of Air Transat reported it lost $39.9 million or $1.03 per diluted share in its quarter ended July 31. The result compared with a profit of $57.3 million or $1.49 per diluted share a year earlier.
Revenue totalled $736.2 million, down from $746.3 million in the same quarter last year.
On an adjusted basis, Transat says it lost $1.10 per share in its latest quarter compared with an adjusted profit of $1.10 per share a year earlier.
It attributed reduced revenues to lower airline unit revenues, competition, industry-wide overcapacity and economic uncertainty.
Air Transat is also among the airlines facing challenges related to the recall of Pratt & Whitney turbofan jet engines for inspection and repair.
The recall has so far grounded six aircraft, Guérard said on the call.
“We have agreed to financial compensation for grounded aircraft during the 2023-2024 period,” she said. “Alongside this financial compensation, Pratt & Whitney will provide us with two additional spare engines, which we intend to monetize through a sell and lease back transaction.”
Looking ahead, the CEO said she expects consumer demand to remain somewhat uncertain amid high interest rates.
“We are currently seeing ongoing pricing pressure extending into the winter season,” she added. Air Transat is not planning on adding additional aircraft next year but anticipates stability.
“(2025) for us will be much more stable than 2024 in terms of fleet movements and operation, and this will definitely have a positive effect on cost and customer satisfaction as well,” the CEO told analysts.
“We are more and more moving away from all the disruption that we had to go through early in 2024,” she added.
This report by The Canadian Press was first published Sept. 12, 2024.
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