[co-authors: Louise Patry, Arianna Yoffe]*

*Disclaimer: Given the speed at which new laws, regulations, and policies have been implemented to control the COVID-19 pandemic, it is possible that the responses below will be impacted.*

Has vaccination been made mandatory in your jurisdiction?

The Government of Canada has made vaccination mandatory for federal public service employees, with exceptions made for, among other things, medical or religious grounds. Otherwise, provinces and territories are left to determine their respective policies. As of the date hereof and subject to certain exceptions, vaccination is not mandatory for the general public in Canadian provinces and territories. While not mandatory, there have been cases of employers and private businesses enforcing their own vaccine mandates in their workplaces.

Can an employer require compulsory vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?

An employer can require compulsory vaccination, but the policy must be reasonable and justifiable. The policy will be evaluated against exemptions such as medical reasons, rights and freedoms set out in the Canadian Charter of Rights and Freedoms, and privacy considerations through contextual analysis. For example, mandatory vaccination policies will be considered reasonable in retirement homes and long-term care sectors where care is provided to the elderly and immunocompromised. Employers can justify health and safety measures to protect the workplace. Still, they must consider the working environment, legislation, governmental guidance, contractual obligations owed to third parties, employee demographics, and other factors relevant to risk assessments in the workplace.

Can employees refuse to be vaccinated? How does an employer need to balance its obligation to provide a safe work environment with an employee’s rights?

Employer vaccination policies touch on individual and fundamental rights and freedoms, such as employee privacy and integrity. Medical, religious and philosophical objections to vaccination will likely surpass the employer’s health and safety obligations in the workplace. As such, employees could refuse to be vaccinated on a ground protected by the Canadian Human Rights Act, Canadian Charter of Rights and Freedoms or a similar legislation. If the refusal to be vaccinated is based on a protected ground, the employer has a duty to accommodate the employee to the point of “undue hardship.” In this case, accommodation could include social distancing, mask-wearing, mandated use of PPE, a leave of absence or remote work.

Mandatory vaccination requirements have been litigated in the healthcare setting, and decisions are analyzed on a case-by-case basis. For example, in 2008, several employees of a healthcare sector establishment refused to be vaccinated following an influenza outbreak in the workplace. The vaccine was required as part of an intervention protocol implemented by the Minister of Health and Social Services. The arbitrator balanced the employees’ right to physical integrity with the criteria of proportionality and the objective sought. It was established that, despite the fact that the employees had the right to refuse vaccination, given the particular circumstances, the employees faced administrative measures.

Other workplaces, outside of the healthcare sector, may not be able to demonstrate that vaccination is a justified occupational requirement.

In the event of a refusal, can an employee be dismissed for refusal to comply with the employer’s vaccination policy? Will the employee’s refusal constitute just cause for termination?

Where an employee has committed a misconduct that amounts to “just cause”, the employer may dismiss the employee. To determine what amounts to “just cause”, the main question will be "whether the employee's misconduct was sufficiently serious that it strikes at the heart the employment relationship". The decisions are very fact-specific.

Currently, we believe that is it unlikely that a judge will find that an employee’s refusal to comply with the employer’s vaccination policy will amount to “just cause”. At this time, it is unlikely that an employer would have grounds to do so, however, this could change in the near future.

What benefits or accommodations do employers have to make for vaccinated employees?

To date, there are no mandatory benefits or accommodations for vaccinated employees. Nevertheless, employers may consider offering incentives to employees who choose to receive the COVID-19 vaccination, including bonuses and paid-leave policies for vaccination (as further discussed below). While well-meant, employers must ensure that these incentives do not result in differential treatment of groups of employees on the basis of provincial and federal human rights legislation.

Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?

Whether an employee has been vaccinated or not is considered private and confidential information. In certain circumstances and subject to reasonableness and proportionality, it may be justifiable for an employer to ask about vaccination. However, in other cases, it is at the employee’s discretion whether they choose to share this information. In the event that this information is disclosed, it is likely that this would fall under the employer’s general obligation to maintain a safe workplace. Employees cannot refuse to work due to a general risk and would have to demonstrate that the specific workplace is deemed unsafe. Due to the unprecedented nature of COVID-19, it is not yet clear what safety requirements will be implemented as employees, vaccinated and unvaccinated, return to work. It will be interesting to see how these issues are litigated in a court of law.

In your country, are employers required to provide paid leave for employees to get vaccinated?

Four Canadian provinces have already enacted legislation on paid leave for employees to get vaccinated. Saskatchewan was the first to implement a vaccination leave. On March 18, 2021, the Occupational Health and Safety Regulations, 2020 was amended to include a new Special Vaccination Leave whereby employees are not only entitled to three consecutive hours of paid leave to be vaccinated (or more than three consecutive hours, at the employer’s discretion) but will not lose any benefits or pay while receiving the COVID-19 vaccination. Similarly, in Alberta, pursuant to the amended Employment Standards Code, employees are entitled to three hours of paid leave to get each dose of the COVID-19 vaccine. In British Columbia, Bill 3: Employment Standards Amendment Act, 2021 was amended to guarantee up to three hours of paid leave for employees to be vaccinated. More recently, in Ontario, the COVID-19 Putting Workers First Act, 2021 amended the Employment Standards Act, 2000 to permit employees to receive up to three days of paid leave, among other reasons, to get vaccinated. In the other provinces, it is at the employer’s discretion to implement such a policy.

Employees may also be eligible to benefit from other statutory leaves to get vaccinated or entitled to take paid sick leave under an employment contract. This is undoubtedly a topic of conversation in the remaining Canadian provinces that have yet to act on this issue.

*Davies Ward Phillips & Vineberg LLP