COVID-19 may have brought Canadians together in many ways, but a
number of issues surrounding the pandemic have proven to be
divisive on some level. Masking policies, stay at home orders, the
forced shut down of many businesses, government compensation
schemes or the lack thereof, testing rates, and delays have brought
on many a heated debate. The rollout of vaccines – who gets
them first, how they are administered, and the shortage of this
highly in-demand product – is the issue dominating press
conferences and front pages at this point. As we see COVID vaccines
deployed across the Province of Ontario, the emerging debate is
whether or not employers can mandate that employees be vaccinated.
An important question, so far without a clear answer.
Like so many legal issues raised with COVID, there is no clear
precedent. Helpful, though not determinative, is the caselaw
dealing with “Mask or Vaccinate” influenza policies in
the health care setting. Employers implemented policies
mandating that workers either get the flu vaccine or wear a mask
throughout their shift. Unions challenged these policies and a
number of arbitral decisions addressed whether such policies were
in violation of the collective agreement. Unfortunately, these
decisions are divided.
Some arbitrators (see Health Employers Assn. of
British Columbia v. the Health Sciences
Assn1 and North Bay General Hospital v
ONA2) found the employer’s policy
compliant, citing provisions of the collective agreement that
specifically addressed vaccinations during an outbreak, directions
from the Ministry of Health to employers to implement an influenza
protocol, expert evidence supporting vaccination rates amongst
health care workers and transmission of influenza to the patients,
and the existence of the alternative of masking. In other decisions
(see Sault Area Hospital and Ontario Nurses’
Association3, St Peter’s Health System v
CUPE, Local 7784 and St. Michael’s
Hospital v Ontario Nurses’
Association5), arbitrators found the policy in
violation of the collective agreement citing a lack of
“consensus” on vaccinating and masking and the prevention
and control of influenza, a lack of mandating of the policy by a
Medical Officer of Health or regulatory body, and that the
scientific evidence available was insufficient to support a
requirement for employees to wear masks for up to six months every
year. In the St. Michael’s Hospital case, the
Arbitrator stated that the evidence supporting a masking mandate
was “insufficient, inadequate, and completely
unpersuasive”.
I can clearly see some distinguishing aspects between the
influenza ‘Mask or Vaccinate’ policies and the situation
currently facing employers and workers in health care settings.
COVID is much more infectious and deadly, vaccines are much more
effective (95%6 vs. 20-60%7), and there has
already been considerable research on the transmission of the virus
and the efficacy of the vaccine.
Only one arbitral decision has been released to date dealing
with mandatory COVID testing in a retirement home. Christian
Labour Association of Canada v Caressant Care Nursing
& Retirement Homes8 dealt with an
employer’s policy that staff be tested every 2 weeks for COVID.
An employee refused to be tested and was placed on unpaid leave. In
this case, the Arbitrator upheld the policy, finding that the
testing requirement, even though it was intrusive to the
individual, was reasonable in light of all of the
circumstances.
Ontario does have a precedent for mandatory vaccination. The
public school system requires students to submit evidence of their
updated vaccines9, although there are limited exemptions
for medical reasons and religious beliefs. Medical reasons require
a “Statement of Medical Exemption” form to be submitted,
signed by a doctor or nurse practitioner, and submitted to the
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. The religious belief exemption requires an
education session to be completed at the local public health unit
covering basic information about 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. These exemptions act to
accommodate legitimate human rights that arise with such a
mandatory vaccination program for grounds of disability and creed
under Ontario’s Human Rights Code.
So, will Ontario employers be able to mandate COVID
vaccinations? That answer seems clear – no employer can
physically force an employee to be vaccinated. However, where
employers implement mandatory vaccination programs, and employees
refuse to comply, what can be done? Can employees be put on unpaid
leave? Be disciplined? Or terminated? Will employers be expected to
try to find alternative work? Will they allow employees to work
from home?
It will take time, but we will eventually see policy grievances
in a unionized setting and challenges for terminations for a cause
in both unionized and non-unionized settings where employees are
terminated for refusing to vaccinate. While the jury is still out,
I expect decision-makers will try to provide as much of a balancing
act as possible between individual’s human rights, privacy, and
bodily integrity vs. the health and safety needs of the public,
co-workers, and clients/patients/customers.
I expect that mandatory vaccination programs and terminations
will be upheld in workplaces providing direct care, particularly of
a vulnerable population in a congregate living situation, subject
to human rights exemptions. The public school exemption program is
a solid example of the type of protocol that I can see being
followed.
Less clear in my mind is whether close physical workspaces like
those in the manufacturing and construction settings will be
subject to enforceable mandatory vaccination programs and
terminations for cause. Unionized settings will likely face
even greater resistance.
Lastly, much more ‘sterile’ work settings, like offices,
where options exist for many employees to work remotely, offer up
much more room for debate on an employer’s ability to terminate
for cause. While I expect employers may be able to place employees
off on an unpaid leave where an employee refuses to vaccinate in a
working environment where COVID can be transmitted, I am doubtful
cause will be established on terminations. In non-unionized
workplaces, employers may be looking at terminations without cause
if they are not prepared to employ someone who refuses to be
vaccinated, subject to human rights.
Like so many legal issues raised with COVID, we will need to
wait and see if the government enacts any mandatory vaccine
legislation (which it has said it is not intending to do) and the
release of arbitral and court decisions before employers have any
certainty about their right to demand that employees submit to
COVID-19 vaccinations.
Stay tuned!
Footnotes
1 (2013) 237 L.A.C. (4th) 1, [2013] B.C.C.A.A.A. No.
138
2 2008 CarswellOnt 9040 (Ont Arb)
3 2015 CanLII 55643 (ON LA)
4 2002 CarswellOnt 4709 (Ont Arb)
5 2018 CanLII 82519 (Ont LA)
6 Pfizer-BioNTech COVID-19 vaccine: What you should
know and Moderna COVID-19 vaccine: What you should
know
7 Center for Disease Control, CDC Seasonal Flu
Vaccine Effectiveness Studies, (accessed December 14,
2020).
8 2020 CanLII 100531 (ON LA) (Randall).
9 Immunization of School Pupils Act
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