Mandatory workplace vaccines the safest way to avoid a lawsuit.
Ipredicted back in July that Ontario’s Seneca College would be the forerunner, not the outlier, in the march toward mandatory workplace vaccinations. Now, with the federal government stepping into that breach, requiring not only federal public servants to be vaccinated, but all employees who are federally regulated, and the City of Toronto following suit, my words appear prescient.
Many employers have quickly joined the fray and my office has been busy drafting workplace vaccination policies for companies (and even law firms) big and small.
When asked by clients what their policies should consist of, my initial response is always: “What do you wish it to be?” and then we can devise it. Employers have considerable power in mandating this and their policies should, as with all policies, be consistent with their corporate culture.
Some want to be leaders in health matters and have an environment where staff and customers need not fear to tread. Others are more concerned with the voices of those resisting vaccinations and want to avoid a divided workplace. However, not requiring vaccinations provides no respite from that conflict, as many vaccinated employees increasingly have been expressing concern with employers that permit the unvaccinated to enter their workplaces. Indeed, we receive many inquiries from employees concerned that their employers, or managers themselves, are unvaccinated.
To be clear, employers have the power to mandate compulsory vaccinations in their workplaces and terminate employees who refuse to be vaccinated. That is the main question we receive and that is the answer. Similarly, they can require proof of vaccination cards instead of accepting mere attestations by employees.
This may tread marginally upon privacy rights but in law, safety invariably trumps privacy. And the statistics respecting COVID-19 vaccines are irrefutable: The vast majority of new COVID cases filling hospitals are among the unvaccinated, which is particularly poignant since the vast majority of Canadians are vaccinated.
Charter issues only apply to government, not to private employers, and human rights legislation is only relevant to the extent that a compulsory vaccination policy is inconsistent with an employee’s religion or the employee has a physical disability making vaccination dangerous. That religion cannot be their personal faith, but a bona fide established religion, and they must provide evidence such as proof of dues or a pastor’s letter showing long-term religious adherence. In other words, it cannot be a religion of convenience or a personal faith, and there are few religions that prohibit vaccinations as a central tenet.
The test for medical disability is almost as strict. A letter from a local clinic doctor certifying that an employee should not be vaccinated, written often as readily as handing out tissues, will not suffice, and employers can require the employee to have their doctor to speak to the employer’s specialist to ensure that vaccination represents a substantial health risk to the employee.
Compulsory vaccinations also do not apply to employees with no contact with fellow workers, customers or suppliers. But employees cannot insist on working from home to avoid being vaccinated. The choice of work venue remains the employer’s and they can compel employees to return to the workplace with the lifting of restrictions, even if an employee can establish, as some can, that they worked as efficiently remotely.
The reason why compulsory vaccinations, subject to these limited restrictions, can be compelled, is that COVID has destroyed our health, economy and social fabric, and employers have a legal duty to maintain a safe workplace. Vaccinations are the gold medal standard in that respect. The courts and arbitrators will encourage whatever public health protections our governments and health officials encourage, as case law in matters such as this is based upon public policy.
Employers have no perfect option as many employees militantly support divergent positions. Some of my clients, who have not enforced compulsory vaccinations, have prescribed different buildings for vaccinated and unvaccinated staff. Others have allowed the vaccinated to attend work with limited impediments while requiring the unvaccinated to be burdened with a broad panoply of PPE, testings and limited access. As we inch toward a full-employment economy again, employers requiring vaccinations will lose some of their employees who are becoming increasingly difficult to replace.
The right to require vaccinations is one that the courts will eventually rule upon and, at least until then, employers have a choice among a raft of conflicting interests.
One thing that can be said in favour of requiring vaccinations is unequivocal: If a person attends a workplace and they, or their family, contracts COVID, a mandatory vaccination policy will save the employer from a negligence action. As the most prophylactic way to avoid COVID, no one can say that such an employer is negligent. Avoiding such a case could save an employer hundreds of thousands of dollars — or more.
Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com.
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.