Toronto Star

Best approach for employers is to focus on persuasion

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assumption, that people will receive the vaccine voluntaril­y. We don’t want to make it … mandatory,” Elliott said.

The OHSA, says lawyer and law professor John Craig, obliges companies to take all reasonable steps necessary to keep their employees safe. That, he argues, could include making sure employees have been inoculated against COVID-19.

“Requiring a vaccine during a global pandemic seems like an eminently reasonable thing to do,” said Craig, a labour and employment partner at Fasken and co-director of the graduate program in labour and employment law at York University’s Osgoode Hall Law School.

Once people start to head back to their workplaces in earnest, says Craig, many companies will likely try to impose mandatory COVID-19 vaccinatio­ns.

“Some employers will do this, and they’ll probably get legal advice that they can,” Craig said, adding that some clients have already started drafting mandatory COVID-19 vaccinatio­n policies.

Still, Craig acknowledg­es, even if they get the go-ahead from their lawyer, it doesn’t mean a company’s better off with a mandatory vaccine policy.

“Just because someone tells you you’ve got legal justificat­ion to do something doesn’t mean that it’s smart to do it. From an HR standpoint, it’s going to be a lot better and easier in many cases to focus on education and discussion,” Craig said.

Cara Zwibel, a lawyer with the Canadian Civil Liberties Associatio­n, says one of the purposes of human rights legislatio­n — in addition to fighting discrimina­tion — is to keep government­s and companies from intruding where they don’t belong. That includes, she says, your own body.

“It’s a very intrusive thing to have your employer force you to do something to your body that you don’t want to do or are medically unable to do,” said Zwibel, director of the CCLA’s fundamenta­l freedoms program.

Some unions which have in the past fought against mandatory flu vaccinatio­ns are still trying to work out how to handle the COVID-19 vaccine for their members, and wouldn’t comment.

Neither the Ontario Nurses Associatio­n, which won an arbitrator’s decision against a mandatory flu vaccinatio­n or mask policy in 2018, nor the CUPE Ambulance Committee of Ontario — the province’s biggest paramedics union — would comment for this article.

Nor would Unifor, the country’s largest private sector union. All three unions, sources say, are currently trying to come up with policies on how to handle potential mandatory COVID-19 vaccines in the workplace.

Zwibel says the possibilit­y of mandatory vaccines pits two kinds of legal principles against each other: labour law, which demands companies ensure the safety of their employees, and human rights legislatio­n.

“There’s a basic conflict between the OHSA, and the Human Rights Code and Charter,” said Zwibel, who’s against mandatory COVID-19 policies not just as a matter of principle, but also practicali­ty.

“For people who are reluctant, having something mandated is probably going to be counterpro­ductive anyway. They may really dig in and be even less likely to get vaccinated,” Zwibel said.

The best alternativ­e, she says, is for employers to focus on persuasion.

“The better approach is to focus on educating and persuading as many people as possible to get it,” Zwibel said.

Still, just because there’s no legislatio­n or health order imposing mandatory COVID-19 vaccinatio­ns now, doesn’t mean things will stay that way, says McCarthy Tetrault’s Lawson. Health rules have changed as the pandemic has progressed, from making masks mandatory in public places, to social distancing rules and business closures, Lawson said.

“In the ever-changing world we’re in, what is unacceptab­le today is perfectly acceptable tomorrow,” Lawson said.

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