WLG asked its member firms around the globe to provide some insight on employer and employee rights when it comes to requiring the COVID-19 vaccine to return to work. See responses for Canada below. To view responses from other countries, click here.

 

*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.*

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

In Canada, each jurisdiction has its own occupational health and safety legislation that obliges employers to take the necessary precautions to provide a safe work environment for their employees. While such a duty has obliged employers to create new directives, there are conflicting opinions on whether an employer can implement a vaccination policy.

In the event employers could require compulsory COVID-19 vaccination, it would be on the condition that such a policy is connected to the employer’s legitimate business interests, bearing in mind the health and safety of employees and clients. Labor arbitrators have previously recognized that employers in healthcare and residential care services may be able to require that their employees be vaccinated. However, this is subject to exceptions, particularly human rights legislation which protects employees against discrimination on certain grounds (discussed below).

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.