Vaccination Requirements And The Canadian Workplace: Anticipating The Next Big Question Of The Pandemic – Coronavirus (COVID-19) – Canada – Mondaq News Alerts

Whether an employer can require its employees to be
vaccinated against COVID-19 as a condition of continuing employment
is the latest in a series of important legal questions to arise
from the COVID-19 pandemic. While it is already attracting
media interest, the issue of mandatory vaccination has not been
conclusively decided in a judicial context in Canada. It is
therefore likely that workplace COVID-19 vaccination requirements
will be litigated before too long, whether in the courts or –
in unionized workplaces – by arbitrators.

In this post, we look at what the existing authority in Canada
tells us about the legality of mandatory vaccination policies,
which has long been a controversial subject. The balance of
existing authority suggests that the enforceability of such
policies is partly dependent on the workplace in which they are
applied:

• In healthcare
  (hospitals and long-term care homes) it is likely that an
  appropriately drafted and implemented mandatory COVID-19
  vaccination policy would be upheld as both necessary and
  reasonable.
• In other “congregate
  work settings” where there is a demonstrated and
  heightened safety risk from COVID-19 transmission (e.g., meat
  packing plants, warehouses, construction), such a policy may also
  be upheld.
• In other contexts,
  where the existing evidence of the risk of transmission is less
  clear and may be mitigated by workplace measures less intrusive
  than vaccination (such as masks, physical barriers/distance, and
  testing), or by working from home, the enforceability of a
  mandatory vaccination policy is similarly less clear.

In the unionized context, the Supreme Court of Canada has
endorsed a balancing-of-interests approach to the unilateral
exercise of management rights to ensure reasonable safety in the
workplace.¹ Accordingly, a mandatory
vaccination policy may be considered both necessary and reasonable
if the need for the rule outweighs the harmful impact on employee
rights. For any employer considering the implementation of a
mandatory COVID-19 vaccination policy, it would be crucial to
design a policy that provides employees with a reasonable,
non-disciplinary alternative to vaccination, such as working from
home (where possible) or an unpaid leave of absence (where working
from home is not possible), and to accommodate employees who cannot
get vaccinated for medical reasons or because of protected grounds
for discrimination under human rights legislation. A mandatory
COVID-19 vaccination policy should not be a blanket policy. A
policy that distinguishes between high risk and lower risk roles,
akin to safety-sensitive and non-safety-sensitive roles in the drug
and alcohol testing context, would likely enhance a policy’s
justification.

It should be noted that certain public sector employers have
statutory authority to require their employees to be vaccinated
against specific diseases.² Special legislation can also be
applicable to supplement employee rights – Ontario, for
example, has adopted legislation that provides for job-protected
leaves of absence during the pandemic.³ However, private
sector employers have no statutory authority at this time to
require their employees to get vaccinated against COVID-19, and
provincial governments have so far
indicated that COVID-19 vaccination will not be made
mandatory.

In this post, we look at the existing law on mandatory workplace
vaccination in the common law provinces. In a future post, we will
look at some of the emerging decisions on COVID 19-related testing
and screening policies.

Mandatory Workplace Vaccination: Past Rulings

Provincial occupational health and safety (OHS) legislation
stipulates that employers have a duty to protect employees from
work-related illness or injury.⁴ To fulfill this duty, some
hospital employers have previously introduced mandatory vaccination
policies to limit the spread of influenza in the workplace, with
most (but not all) such policies upheld.

The limits to an employer’s ability to implement mandatory
flu vaccination policies have generally only been addressed in
arbitration cases in the unionized context, thus the applicable
collective agreement will often have an impact on what is
permissible in the specific circumstances. In addition, given that
arbitration decisions are not binding on other arbitrators or
courts, it is uncertain how much weight these past cases will have
on the question of whether employers can implement a mandatory
COVID-19 vaccination policy, especially in a non-union setting.
Moreover, a vaccination requirement imposed as a result of an
ongoing pandemic or an active outbreak of a highly infectious
disease is likely to be treated differently from one imposed on
employees in ordinary circumstances.

Where an employer unilaterally imposes a policy in a union
setting, the criteria to determine whether the policy is reasonable
and enforceable are as follows (the KVP factors):

• It (the policy) must not be
  unreasonable.
• It must not be inconsistent with the
  terms of employment for non-unionized employees or collective
  agreement for unionized employees.
• It must be clear and
  unequivocal.
• It must be brought to the attention
  of the employee affected before the employer can act on it.
• The employee concerned must have been
  notified that a breach of such rule could result in their discharge
  if the rule is used as a foundation for discharge.
• Such rule should have been
  consistently enforced by the employer from the time it was
  introduced.⁵

Employers bear the burden to justify that a unilaterally
implemented policy is reasonable on health and safety grounds.⁶
Generally, the most significant hurdle for employers is
demonstrating whether the policy is reasonable, as this inquiry
goes to the root of why the policy is required and is balanced
against employee rights. If the need for the policy is greater than
the harmful impact on employees, the policy will be reasonable.

While labour arbitrators in Alberta and British Columbia have
upheld mandatory vaccinate-or-mask policies (VOM policies) imposed
by hospital employers to combat seasonal influenza, arbitration
decisions in Ontario have gone the other way.⁷

In St Michael’s Hospital, the Ontario Nurses
Association challenged a VOM policy that had been put in place for
flu season by a Toronto hospital. The hospital was one of a small
number (less than 10%) of Ontario hospitals at that time with a VOM
policy. The arbitrator followed an earlier Ontario decision and
struck down the VOM policy as being unreasonable because there was
insufficient evidence the policy protected the workers and patients
from harm:

Among the issues the labour arbitrator took with the VOM policy
was that it pressured employees to get vaccinations or face the
stigma associated with wearing a mask and being identified as a
non-vaccinated employee. Given that we now have significant
evidence of the effectiveness of masks in reducing transmission of
COVID-19, evidence of asymptomatic transmission, and vaccines
reported to be highly effective, it is reasonable to conclude that
the decision in St Michael’s Hospital would be given
little or no weight in the consideration of a mandatory requirement
for COVID-19 vaccination.

Recent arbitration decisions on COVID-19 screening or testing
policies (which we will be addressing in a follow-up blog post),
also suggest that the safety risks posed by COVID-19 will in
appropriate circumstances justify reasonable intrusions on employee
rights.⁸

Non-Union Employees

In the non-union setting, employers will need to be concerned
with three issues: constructive dismissal, human rights and privacy
legislation.

First, if the mandatory vaccination policy results in a
unilateral substantial change to a fundamental term of employment,
an affected employee would be entitled to take the position that
they have been constructively dismissed. In such circumstances, the
employer could be exposed to significant termination costs
depending on whether the employee has an enforceable contractual
termination provision or is entitled to reasonable notice at common
law. A mandatory vaccination policy may be more likely to result in
a constructive dismissal where the repercussions for the employee
who has decided not to be vaccinated (or refuses to disclose
whether they have been vaccinated) are termination for cause or a
forced leave of absence without pay. The risk of constructive
dismissal will be lessened where employers obtain the
employee’s consent with fresh consideration in advance of
implementing a mandatory vaccination policy or where the employer
has given reasonable advance notice of the unilateral
implementation of such a policy (generally considered to be the
same amount of notice the employer would need to give to terminate
employment without cause).

Second, a mandatory COVID-19 vaccination policy may be found
discriminatory if it does not include exemptions for protected
grounds, such as religious reasons or medical reasons (i.e.,
immunocompromised persons or those allergic to the vaccine). That
said, in some circumstances an employer may be able to defend an
otherwise discriminatory mandatory vaccination policy on the basis
that it is a bona fide occupational requirement. However,
the employer would need to show the purpose of the policy is
rationally connected to the employee’s performance of their
job, it was adopted in an honest and good faith belief that it is
necessary to fulfil that work-related purpose, and that the policy
is reasonably necessary to accomplish such purpose. Part of this
analysis looks at whether a policy can achieve its purpose through
less discriminatory means. For example, a policy may be
unreasonable and determined not to be a bona fide
occupational requirement if it results in an employee’s
termination for cause when alternative measures may suffice, such
as physical distancing, use of protective gear, barriers or working
from home.

Third, employers regulated by privacy legislation must ensure
they are only collecting, using or disclosing personal information
(such as whether an individual has been vaccinated) for reasonable
purposes. It may not be reasonable to request from all employees
whether they have been vaccinated if some employees are in
positions that will not require mandatory vaccination (i.e.,
full-time work from home).

Conclusion

Back in 2010, a case came before an arbitrator on the
implementation of a vaccination program by a public sector employer
during the H1N1 influenza pandemic.⁹ The case was dismissed because
that pandemic had come to an end before the appeal hearing. The
union argued it should be heard anyway, as H1N1 was not the first
pandemic and would not be the last. Nevertheless, the arbitrator
concluded the issue had been rendered moot, and the employer’s
obligation to vaccinate, if any, must be considered in context, and
that a decision on the merits “would not be useful for future
potential pandemics which would present their own unique
circumstances and issues.”

COVID-19 has certainly presented its own unique circumstances
and issues, and a number of labour arbitration cases have already
been decided, with more to come, no doubt, including the important
question of whether an employer can adopt and implement a policy
that requires its employees to be vaccinated against COVID-19.

Given the very limited availability of COVID-19 vaccines in the
early stages of the vaccination campaign, it is likely premature
for most employers to implement a mandatory COVID-19 vaccination
policy at this time. However, once vaccines become more widely
available, and provincial restrictions less onerous, the need for a
properly drafted and implemented policy for some employers will
become more pressing. Early movers can expect challenges to
mandatory vaccination policies, particularly in the unionized
context, which will make it even more important to have a carefully
drafted policy.

Footnotes

1.
Irving Pulp & Paper Ltd. v CEP, 2013 SCC 34 at para.
4.

2. For
example, paramedics and other medical workers under the
Ambulance Act (Ontario), and certain childcare workers
under the Child Care and Early Years Act, 2014
(Ontario).

3.
Infectious Disease Emergency Leave, O Reg
228/20.

4.
Occupational Health and Safety Act, RSO 1990 c O.1;
Occupational Health and Safety Act, RSA 2000 c O-2;
Workers Compensation Act, RSBC 1196, c 492.

5.
Lumber & Sawmill Workers’ Union, Local 2537 v. KVP
Co., 1965 CarswellOnt 618 (Ont. Arb.) at para 34, paraphrased
here.

6.
Ibid.

7.
Chinook Health Region v UNA, Local 120, 2002 CarswellAlta
1847 (Alta. Arb.); Interior Health Authority v BCNU, 2006
CarswellBC 3377 (BC Arb.); Re St Michael’s Hospital and
ONA, 2018 CarswellOnt 14889 (Ont. Arb.); Re Sault Area
Hospital and Ontario Hospital Assn. (Vaccinate or Mask), 2015
CarswellOnt 13915 (Ont. Arb.).

8. See
for example, Christian Labour Association of Canada v Caressant
Care Nursing & Retirement Homes, 2020 CarswellOnt 18430
(Ont. Arb.).

9.
Ontario Public Service Employees Union v. Ontario (Community
Safety and Correctional Services), 2010 CanLII 52643
(Grievance Settlement Board).

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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