On Friday, Quebec’s Ministry of Health issued a decree stating that healthcare workers in some settings will have to provide proof that they have been vaccinated against COVID-19. Those who refuse will be reassigned or put on leave without pay.
Can the government of Ontario or workplaces require workers to be vaccinated in order to work?
Simple answer: Yes. Under the Occupational Health and Safety Act, employers have a duty to maintain a safe work environment and take all reasonable precautions to protect the health and safety of workers.
But it’s complicated. Workplace requirements can’t contravene federal or provincial human rights legislation. For example, a worker may argue that they can’t be vaccinated because of a documented disability such as an a previous allergic reaction to a vaccine or for a religious reason.
Colleen Flood, a law professor at the University of Ottawa, prefers not to use the word “mandatory.”
“People imagine you are physically holding someone down and stabbing them with a needle,” she said. “Life is full of choices and consequences.”
What can employers do to encourage compliance?
An employer can generally impose whatever work conditions they wish, subject to occupational health and safety regulations and human rights legislation. An employee who refuses to comply with their employer’s vaccination policy could potentially be scheduled for fewer hours, or none at all, or be assigned different duties and responsibilities, said Allan Wells, an employment and labour lawyer with Osler, Hoskin & Harcourt LLP.
Depending on timing, employers considering a vaccination policy may want to include it with their return to the workplace program, Wells said. Many employers have already sent anonymous questionnaires to gauge employees’ comfort with returning to the workplace.
As part of a return to work program, employers could reasonably ask employees whether they have been vaccinated, intend to get vaccinated — and when — or if they do not intend to get vaccinated.
If an employee says they don’t intend to get vaccinated, they could be asked to disclose the reason. This would allow the employer to make a determination of whether the refusal is based on a protected ground of discrimination and whether an accommodation analysis would need to take place, he said.
This is done on a case-by-case basis. Accommodation could include allowing the employee to work from home or possibly requiring the employee to wear personal protective equipment and to maintain physical distancing.
If most of the workforce is vaccinated and a worker declines to be vaccinated and return to work, it could be considered “abandonment” of employment, said Tatha Swann, an employment lawyer with Levitt Sheikh Chaudhri Swann in Toronto.
“Those who don’t comply are rendering themselves unemployable.”
But she also points out that, in order for employers to require vaccination, vaccines must be readily available. “Employers are unlikely to be looking for battles with employees.”
Could workplace vaccination policies be challenged?
Yes. But how they are challenged depends on who is making vaccination a requirement for employment.
If it’s a government, it may be open to a challenge under Section 7 of the Canadian Charter of Rights and Freedoms, said Flood, who is the
University Research Chair in health law and policy at the University of Ottawa.
The government will have to prove vaccination is necessary for health care workers, Flood said. It would probably not be defensible to require that all health care workers be vaccinated, but it can be argued that some kinds of workers should be.
If the requirement is an employer’s policy, it would be more likely to be contested under labour law.
An employer vaccination policy is more likely to survive a legal challenge if it is responsive to and distinguishes between different types of work spaces and risk profiles for transmission of COVID-19, Wells said.
Are the any precedents?
Most precedents involve requirements that healthcare workers be vaccinated for seasonal flu.
One recent example is
at St. Michael’s Hospital in Toronto who were required to either be vaccinated for seasonal flu or to wear a mask under a policy introduced in 2014.
Lawyers for the Ontario Nurses’ Association argued that, while the flu vaccine was safe, it was only moderately effective. In some cases, if the flu in circulation did not match the vaccine, the vaccine provided no protection at all.
St. Michael’s could issue rules and regulations, but they could not be inconsistent with and/or in conflict with the collective agreement, which stated that “hospitals recognize that nurses have the right to refuse any required vaccine.”
The vaccine or mask policy was “unreasonable” because it coerced unvaccinated workers into agreeing to vaccination by imposing an obligation to wear a mask when it served no useful purpose, arbitrator William Kaplan said in his decision.
Swann points out that COVID-19 is different from the flu.
“COVID-19 is a more highly contagious and deadly disease than the common flu,” she said. “For example, no one would have quibbled about getting an Ebola vaccine if it was running rampant during flu season at hospitals.”
What’s the argument in favour of governments setting regulations?
If governments don’t step in, employers, operators of venues and even shop owners will request proof of vaccination, said Flood, co-author of
published in February in the Canadian Medical Association Journal.
“It’s going to happen whether you like it or not. But we think it would be better is the government puts some rules in place about where you can and can’t require it,” Flood said.
“People are allergic to the idea of vaccination certificates. They will happen anyway. Let’s get ahead of this and make sure it’s properly regulated.”
How could the Ontario government mandate vaccination?
The province has so far given no indication that it intends to introduce legislation that would require employees to be vaccinated as a condition of returning to the workplace, Wells said. Any such legislation could be subject to a Charter challenge.
However, the province could invoke Section 33 of the Charter of Rights and Freedoms, also known as the “notwithstanding clause,” which allows governments to uphold laws that would otherwise violate Section 2 or Sections 7 to 15 of the Charter. Ontario Premier Doug Ford did this before in 2018 after a judge struck down a bill that would cut the size of Toronto city council almost in half.
A “notwithstanding” declaration can be in effect for up to five years.
Can vaccination requirements change as new medical evidence become available?
Definitely, and it can happen quickly.
“The law is responsive to the scientific context. Evidence is important. And evidence is changing quite fast,” Flood said. “One of the things that would be a slam-dunk is evidence that the (COVID-19) vaccine prevents transmission.”
Kaplan noted in his 2018 decision that one day an influenza vaccine may be developed that is close to 100 per cent effective.
“If a better vaccine and more robust literature about influenza-specific patient outcomes were available, the entire matter might be appropriately revisited.”