The COVID-19 vaccine is being rolled out to frontline workers and the vulnerable population, and it looks like it may soon be available to the public at large. Obviously, that’s great news. It looks like we are on our way back to some degree of normalcy. But, because we are lawyers and lawyers can’t ever just be happy and look at the positives of a situation, we’ve had to start considering the significant potential legal implications and conflicts that could arise with the largescale rollout of the vaccine.
This post will consider one of those implications: can employers mandate that their employees get the vaccine?
Firstly, it should be stated at the outset that the issue of employers mandating a vaccine, at least with COVID-19, has not been litigated at all. There is no real on-point case law or specific authority for which we can derive any firm answer. Right now, the closest thing to on-point case law we have in Ontario are a couple of tribunal decisions where hospital policies mandated that staff receive the flu vaccination or were mandated to wear masks.
For example, in the arbitration decision of Sault Area Hospital v Ontario Hospital Association, the Ontario Nurses’ Association argued that the hospital’s vaccinate or mask policy was an unreasonable exercise of management power. In reaching a decision, the arbitrator determined that the scientific evidence to support the mandatory imposition of vaccines or masks was insufficient. There was only very limited data on the issue of whether masks actually reduced the transmission of the flu. Furthermore, the policy was described as a way to “coerce influence immunization”, which undermined the collective agreement rights of the employees to refuse the vaccine.
COVID IS DIFFERENT
COVID-19, however, is a different animal – our global circumstances now are far different than they were in Sault Area Hospital. There is overwhelming evidence that COVID-19 is far more contagious than the flu. The mortality rate is higher. Variants are beginning to appear, some of which have notably higher rates of infection than the original COVID-19 virus. This isn’t “just a flu”.
CAN YOU PLEASE JUST ANSWER THE QUESTION?
Employers, by virtue of the Ontario Occupational Health and Safety Act, have a duty to take all reasonable precautions, in the circumstances, to ensure the safety of their employees. For employers during the COVID-19 pandemic, this has meant being diligent about keeping up to date with public health guidelines, and strictly applying public health guidelines in the workplace. An employer’s non-compliance with these guidelines would constitute a failure to apply reasonable precautions to ensure the safety of its employees.
Employers set the conditions and the health and safety policies of the workplace. Given the stringent guidelines imposed by public health bodies, it seems likely that decision-making bodies would err on the side of public health in imposed vaccination disputes. Employers would almost certainly be able to demonstrate sufficient public health importance to underscore mandatory vaccination policies. Decision-makers, by and large, will probably want to want to decide cases in a manner that reflects the significant global concerns surrounding the virus.
CHALLENGES FOR EMPLOYERS
The biggest hurdles faced by employers seeking to mandate that employees receive the COVID-19 vaccine are issues with interference of bodily autonomy, human rights issues, and medical exemptions. While the above paragraph of this article suggests that this infringement of bodily autonomy will be found proportionate and reasonable in the circumstances, employees with a bona fide human rights reason for choosing not to get the vaccine would present a much tougher challenge for employers. Religious considerations, for example, might be a human rights concern that employers and employees will engage with. In those circumstances where an employee has a bona fide human rights (or medical) rationale for not receiving the vaccine, the employer would benefit from working with that employee to accommodate them, within reason, whilst still maintaining their duty to ensure a safe workplace.
If you are an employer or employee and want advice on how to navigate the complexities of an employment relationship amidst a global pandemic, please contact us.