• Alex Robertson

Can Employer’s Force Employees to be Vaccinated for COVID-19?

The general answer is no but it will also depend on the workplace.


EMPLOYERS DO NOT HAVE THE AUTHORITY

After nearly one year of unprecedented challenges, COVID-19 cases continue and businesses continue to face restrictions from public health officials. For some businesses, the idea of compelling employees to be vaccinated against COVID-19 may be appealing but the reality is employers generally do not have the authority to force employees to be vaccinated.


The federal government and provincial governments have not implemented mandatory vaccination requirements and there is no existing case law addressing mandatory vaccination of employees in the context of a global pandemic. Without a government directive, it is unlikely Canadian courts would uphold a mandatory vaccination policy in most workplaces.


HUMAN RIGHTS LEGISLATION

While employers are obligated to provide a safe workplace, that duty may not extend to mandatory vaccinations. Even if an employer can make out the case that vaccination is justified on the basis of safety of the workplace, employees may be excused from being vaccinated if the reason for their refusal is a ground covered by human rights legislation (including religion, disability or medical reasons).


Should an employee refuse to be vaccinated for a reason protected by human rights, the employer has a positive obligation to accommodate that employee to the point of “undue hardship.” Further, treating employees differently based on their decision to receive or not receive the COVID-19 vaccine would likely be deemed a human rights violation.


WHAT TO DO WITH EMPLOYEES WHO REFUSE VACCINATION

How employers handle an employee who refuses a COVID-19 vaccination will depend greatly on the employee’s position and the specific workplace. The employer may require the employee to work from home or, in situations where physical attendance at the workplace is required, require the employee to take increased safety measures such as gloves, masks and frequent COVID-19 testing.


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An employer may also wish to terminate certain employees without cause but that may violate human rights legislation and further, such termination would be subject to the provisions of the employee’s contract of employment, the Employment Standards Act, or common law requirements of notice of termination and severance.


Given the current heightened uncertainty, we strongly recommend that employers seek legal advice when facing decisions regarding employees and COVID-19 vaccination. If you have any questions or concerns or are interested in discussing COVID-19 vaccination in relation to employees and/or termination of employees, please contact us at (604) 736 9791 or email Alex Robertson ar@dwslaw.ca.

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Disclaimer: This article is not intended to serve as, or should be construed as legal advice, and is only to provide general information. No portion or use of this article will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, please get in touch with us.