Mandatory Vaccination Policies in the Workplace Written By: Breanne Schroter, Articling Student With the rollout of the COVID-19 vaccines gaining momentum in Alberta and elsewhere, a new question emerges for both employers and employees: Can an employer legally require their employees to take the COVID-19 vaccine? As discussed below, the answer for most employers is a resounding “probably not.” This is a highly complex issue involving the interplay of employees’ privacy and human rights with employers’ workplace safety obligations. I. THE LAW ON MANDATORY VACCINATION POLICIES This is a novel issue that to our knowledge has not been directly considered by any court in Canada and is equally not directly addressed by any Alberta legislation. That said, Ontario’s Child Care and Early Years Act and Long Term Care Homes Act both establish industries in which an employer can require their employees to be vaccinated against a specific disease.[1] In Alberta, the Public Health Act permits the Lieutenant Governor in Council to order mandatory vaccinations in circumstances such as an epidemic; however, Alberta’s Health Minister has repeatedly confirmed that mandatory vaccinations for COVID-19 will be not implemented in the Province. Under the Occupational Health and Safety Act, employers have a duty to protect their workers by providing, at the very least, a safe workplace. There is exposure to those employers both under legislation and potentially in a civil suit for negligence if the employer fails in its obligation to provide a safe workplace. Considering how contagious and deadly the COVID-19 virus has proven to be, an employer might want to make COVID-19 vaccinations a mandatory workplace policy. While there is no case law on the issue, some labour arbitration decisions have discussed the legality of mandatory vaccines.[2] Arbitrators have recognized some instances where it might be reasonable for an employer to require its workforce to be immunized and justified the temporary removal of employees who refused to be vaccinated.[3] Such cases are almost exclusively seen in the context of health care or residential / home care services, particularly involving vulnerable communities, such as the elderly or immunocompromised. To be justifiable, a mandatory vaccination policy must be connected to the employer’s legitimate business interests which can include the protection of employees and clients or patients. Given COVID-19’s disproportionate effects on vulnerable populations, it is likely that an employer’s interest in protecting the safety of its workforce and customers, etc. would be given increased weight where vulnerable populations are concerned. That said, implementing a mandatory vaccination policy is risky in industries outside of health care/residential and home care. While an employer has an obligation to provide a safe workplace, mandatory vaccination policies would clearly involve employees’ autonomy together with their rights to privacy and, potentially, their human rights. Vaccinations have been found to be an “invasive medical procedure”. II. IMPLEMENTING A MANDATORY VACCINATION POLICY An employer looking to implement a mandatory vaccination policy would need to first demonstrate that less invasive measures, such as mask-wearing, hand-washing, and physical-distancing, would not be sufficient to address the employer’s legitimate business interests. Prior to implementing a mandatory vaccination policy, an employer should conduct an audit of workplace risks and the extent to which these risks may be mitigated by something short of a mandatory vaccination policy or if a vaccination policy is truly necessary. If, after conducting an assessment an employer determines that a vaccination policy needs to be implemented then that employer should take care to ensure that the policy is: Compatible with the applicable employment agreement or any collective agreement; Reasonable and proportional; Clear and unequivocal; Brought to the attention of the affected employees, including any disciplinary measures that may be enforced under the policy; and Enforced consistently since the time of introduction. “Anti-mask” and “Anti-vaxxer” groups are likely well primed and itching for a fight over the implementation of this kind of policy. Accordingly, a word of caution for employers considering implementing a mandatory vaccination policy – be prepared for potential liability arising from these policies. As noted above, this is a novel area and it is not clear whether such policies will be received well by courts or labour arbitrators. Moreover, it is entirely possible that liability could arise from an employee’s adverse reaction to the vaccine itself. Our recommendation, at least for now, is that employers should look to implementing this kind of policy only in the event that other measures (including mask-wearing, etc.) are proven to be insufficient to ensure a safe workplace. Even if a vaccination policy is determined to be the only effective measure for an employer’s workplace, accommodation for employees who object to being vaccinated (for whatever reason) must be considered by the employer on a case by case basis. Further liability can arise from human rights claims by employees who may allege discrimination on the basis of disability or religious belief. In these instances, an employer has the right to understand and verify the employee’s objection, but the employer’s interest in protecting the health and safety of the workplace will be trumped by an employee’s legitimate human rights claim. III. DISCIPLINE IN THE CONTEXT OF A VACCINATION POLICY It is highly unlikely that an employee can be dismissed with cause for refusing to be vaccinated. Any just cause analysis in those circumstances would quite rightly include an assessment of other measures, short of termination, in response to the employee’s refusal. Such measure could include: Requiring the employee to work remotely where and when possible Requiring the employee to wear PPE, such as face masks, face shields, or gloves; Requiring regular COVID-19 tests; or Adjust working conditions (such as hours or physical circumstances) to accommodate physical distancing from other employees. IV. CONCLUSION Whether a mandatory vaccination policy is justifiable in a particular case is highly fact-specific. It is unlikely, though not impossible, that an employer outside the realm of health care/home care industries would be able to establish that they have no alternative to implementing a mandatory vaccination policy. If you are considering implementing a COVID-19 vaccination policy, contact a member of Parlee McLaws’ Labour and Employment team and let us help guide you through the process. [1] Child Care and Early Years Act; Long-Term Care Homes Act, 2007, S.O. 2007, c-8; Long-Term Care Homes Act, 2007, S.O. 2007, c. – 8 [2] Interior Health Authority (Cottonwoods Extended Care Facility) v BC Nurses’ Union, 2017 CanLII 72435 [3] Carewest v. A.U.P.E., 104 L.A.C. (4th) 240; Chinook Health Region v. U.N.A., [2002] 113 L.A.C. (4th) 289; Interior Health Authority v. BCNU, 155 L.A.C. (4th) 252; Interior Health Authority v. B.C.N.U [2006] B.C.C.A.A.A.; and Health Employers Assn. of British Columbia and HSA BC (Influenza Control Program Policy), Re, [2013] B.C.C.A.A.A. No. 138 Disclaimer: This article is to be used for educational and non-commercial purposes only. Parlee McLaws LLP does not intend for this article to be a source of legal advice. Please seek the advice of a lawyer before choosing to act on any of the information contained in this article.