As COVID-19 vaccines are made available to an increasing segment of the population and vaccine rollout expands, many are excited about the prospects of returning to some semblance of normalcy. For many, this involves a return to the workplace. Accordingly, employees and employers will have to wrestle with the challenge of their legal rights and responsibilities respecting vaccinations. As is the case with hard dilemmas, there are competing interests that are difficult to reconcile. A balanced approach appears to be the most prudent way forward.
On the one hand, vaccinating is a medical decision that employees may reasonably want to keep private and that some may feel is beyond the purview of their employer’s knowledge. On the other – employers have legal obligations to ensure workplaces are safe for employees, customers, clients etc… This begs the question: can employers force their employees to get vaccinated?
Ontario has no legislation that addresses this question directly save for a few granular exceptions for employees that work with vulnerable sectors, (i.e. employees working in long-term care homes and daycares), and the case law pertaining to vaccines in the non-unionized legal realm is sparse. We can only make inferences from the relevant patchwork of legislation. That said, the short answer is that employers who determine that vaccination is integral to the health and safety of its workers can create policies requiring vaccination or verification of same where such a policy is reasonable. There are however human rights considerations that trump the employer’s policy-making prerogative. Employers who do implement such a policy must also comply with privacy considerations, the breach of which may be actionable.
Workplace Policies and Employers’ Obligations Re Safety
The Occupational Health and Safety Act mandates employers with ensuring their workplaces are safe. For the purposes of COVID-19, this would include workplaces that are free of unnecessary risks of contagion and outbreak of communicable viruses. Employers keen on mandating workforce vaccination would be ill-advised to dismiss employees who refuse to be vaccinated. While certainly, employers can terminate an objecting employee on a without cause basis, this may increase damages to a viable wrongful dismissal claim that a dismissed employee may pursue. Prudent and well-advised employers will instead implement a vaccine verification policy, the continued non-compliance of which may expose an objecting employee to just cause dismissal.
Employers are free to create workplace policies that require vaccination and employees must generally comply with workplace policies, conditional upon the provision of sufficient notice of the date the policy takes effect, and that the policy is reasonable, clear, consistently enforced and has a rational connection with the employment relationship. The reasonableness of such a policy will depend entirely on the context of the workplace, and the risk exposure to various stakeholders that the employer engages with. Accordingly, a marketing firm with remote working arrangements may have less of a need for such a policy than a retail store.
Further, the breadth of such a policy may be adjusted where required. Company-wide policies may blindly and arbitrarily include individual employees or entire departments that may have remote working arrangements where it would be unreasonable to require the employees/departments to provide verification of vaccination as a matter of policy. Ostensibly, a carve out for employees who are permitted to work remotely and who are not interacting with vulnerable classes may appear to be reasonable. However, this is not a perfect solution as it may provoke employees for which the policy applies, and who may reasonably argue that a carve-out is unfair, discriminatory and a selective enforcement of the policy. Certainly, like many mandatory workplace requirements, vaccine verification policies at the workplace may be met with resentment and even more entrenched refusal by employees who were already adamant about not being vaccinated. Some employees who are vaccinated and have no issues with vaccines may also be aggrieved about their employers mandating verification of their vaccination. Accordingly, employers would be ill-advised to create such a policy before more tactful approaches are explored. We human beings almost always resent top-down edicts from any agents of authority, especially our employers. An incentive system may be a better alternative, such as positive reinforcement for employees who provide verification of vaccination.
COVID-19 vaccination engages protected grounds of human rights legislation, including family status, disability (both physical and mental), sex (pregnancy) and creed (religion). Accordingly, employees may have legitimate human rights related reasons grounding their decision to abstain from vaccinating. If an employer mandates vaccination verification through a work-place policy, and an employee refuses to vaccinate or provide verification of same due to any of the grounds on a bona fide basis, the employer must accommodate the employee up to the point of undue hardship. In such circumstances, the employee must demonstrate their membership in the protected group by providing evidence if required. The employee must also co-operate in the accommodation process. Where an employee proves their membership in the protected group, and co-operates in the accommodation process, the employer cannot dismiss the employee without violating human rights legislation and exposing itself to liability. The termination would be unlawful if the decision is at least partly motivated by the employee’s membership in the protected group.
Most Ontario employers are provincially regulated. Currently, there are no privacy laws that govern how provincially regulated employers handle employee information. However, employees, like any other class of citizens, have a reasonable expectation of privacy, especially at the workplace. Asking employees whether they have received a vaccination and requesting proof of vaccination is a request for employees’ medical information. This triggers certain privacy considerations which means employers must balance workplace safety measures with their employees’ right to privacy.
As is customary when privacy rights are triggered, employers should establish the purpose and authority for asking for the information and notify the employees of the purpose. The employer should collect the least amount of information to meet the purpose of the request for medical information. An employer can ask for verbal confirmation that an employee has vaccinated. Asking for proof or verification and making copies of same may be an unnecessary overreach. Proportionality is the name of the game. Further, employers should be very selective with who has access to this information. The information should only be shared with a very select few on a strictly need-to-know basis. Finally, the employer should securely store the information and destroy it when it is no longer needed.
Federally regulated employers are subject to the requirements of the federal privacy legislation (PIPEDA). Accordingly, banks, crown corporations, and airlines among others, will have to comply with the provisions respecting collection and use of their employees’ medical information. Non-compliance of same through for example, data breaches, or sloppy employee record retention may expose the employer to individual claims and/or class actions as well as other repercussions by the Office of the Privacy Commissioner of Canada, which enforces PIPEDA.