Mandatory Vaccination Policy – Refusing to Vaccinate

Mandatory Vaccination Policy - Refusing to Vaccinate | Lecker & Associates Law

The Omicron variant has forced companies to implement mandatory vaccine policies in response to COVID-19 outbreaks rising across Canada. If you choose not to be vaccinated, there are concerns over legal rights and a loss of a job. This article attempts to answer what to look for in your company’s mandatory vaccination policy and procedures.

Where a mandatory vaccination policy is being challenged, consider the following:

  • Why has the employer drafted a vaccine policy?
  • What kind of workplace is it (i.e., nursing home, office space, public forum)?
  • Who does your employer serve or what kind of goods do they offer?
  • Do different employees work remotely or in-office?
  • Is the policy clear and obvious as to what it requires?
  • How did you learn about the policy and when did you learn about it?

A mandatory vaccine policy should include measures for discipline in a clearly written way and addressing failure to comply with part of the policy. A comprehensive policy should address those employees that cannot get the vaccine and how will the policy deal with this in the company’s operations. It should have alternatives for those that refuse the vaccine and a provision for rapid testing instead of a vaccine.

The company’s policy should have a system in place for how to collect your information relating to vaccination status, including where to store that information that is not accessible by multiple staff i.e. only management or human resources. Also, does the policy allow for changes that will come with variants in the future? Employers’ policy should include provisions for amending a particular vaccine policy because what is appropriate in January 2022 may not be appropriate later.

Policies should include provisions contemplating appropriate medical documents for human rights, disability or creed exemptions. It should consider what kind of medical provider your employer will receive that information from and where it comes from (e.g. pediatrician, allergist, nurse practitioner, etc.).

For religious exemptions, the policy should have a form to collect this information which will include:

  • The religious community;
  • How long has employee belonged to that religious community;
  • Who is the employee’s faith leader
  • Other questions like these along with the nature of that religion and objections to taking that vaccine.

Where once in a while you have an in-office meeting, before being fired, an employer should engage and educate about vaccines. This is not limited to just sitting people down and explaining the obvious things like what is COVID-19 and side effects of vaccines. A company should offer an opportunity for individuals refusing a vaccine to have difficult conversations and to listen with an open ear.

Where all this fails, employers ought to appoint ambassadors or staff managers to ensure uptake in vaccines. Lastly, a policy should allow for paid time off for getting the vaccine and potentially for the side effects of vaccinations.

Where employees never have to engage with the public or are working fully from home, failure to comply with a vaccine mandate does not make sense. In most cases we have seen, people who have been terminated from their employment for failure to adhere to a mandatory vaccination policy were fired contrary to the above guidelines.

So, as we can see, there are a lot of steps a company can take prior to ending someone’s employment for refusing a vaccination mandate. There has been a huge number of cases of unvaccinated employees being terminated for not complying with a vaccine mandate. Every case is different and context is supreme.

Employers should take objections seriously via their obligations under Human Rights Code even though may feel an exemption case is not true. If the employee regularly engages with other people or is in the public, the policy should provide more regular set of rapid tests (for example, once every few days where an employee has to come into office space).

If you have any doubts about the way you are being treated by your employer, call us. Our team of experienced Toronto Employment Lawyers will assess your situation and provide legal advice to support you.