Hasta La Vista, Unvaccinated Employees?

By Malte Mueller

Since the first wave of the COVID-19 pandemic, employers across Canada have been forced to deal with uncertainty related to the impact of public safety measures on the workplace. Today, thanks to the emergence of vaccines, more uncertainty has entered the workplace picture.

Numerous governments are implementing policies to require vaccination for employees in certain settings while rolling out programs that require vaccination passports for public access to certain non-essential services. In this political and legal landscape, employers who are not directly impacted by government orders mandating vaccination are contemplating mandatory vaccination policies of their own. But are such policies legal?

For organizations asking this question, this article explores the legal ramifications of implementing such a policy and offers some recommendations on how to minimize risks.

 Mandatory Vaccination Policies

There is no question that public- and private-sector support for mandatory vaccination policies has gained considerable steam in recent months.

On August 12, the Provincial Health Officer of British Columbia (BC), Dr. Bonnie Henry, announced that a new public health order will make it mandatory for all long-term care and assisted-living workers in the province to get vaccinated before October 12. On September 13, BC’s mandatory vaccination order was extended to anyone working in a healthcare facility across the province. In addition, it will apply to all workers, students, physicians, residents, contractors, volunteers, and personal service workers who are required to enter these facilities. Any organization impacted by these orders will be required to provide the BC Ministry of Health with information regarding the vaccination of their staff and residents to assess risk and outbreak potential. Until October 12, any unvaccinated staff will be required to wear masks and be tested regularly for COVID-19.

One day after BC’s announcement, the government of Canada announced that it would require all federal public servants to be fully vaccinated by the end of September, and that all federally regulated employees in the air, rail, and marine transportation sectors must be vaccinated by the end of October, if not sooner.

On August 17, the Ontario government followed suit by announcing that vaccination policies would be mandatory in high-risk settings, including hospitals and care homes.

Similarly, the Quebec government has announced that all health and social services workers, whether they are in close direct contact with patients or not, must be adequately vaccinated by October 15, unless they have a contraindication in this regard. All workers subject to this mandatory vaccination requirement will be obligated to provide proof that they are fully vaccinated. Without such proof, they will be reassigned to other duties, where possible. When this is not possible or if the worker refuses, they will be placed on unpaid leave.

It is worth noting that in Quebec, the Public Health Act grants the provincial government and the Minister of Health significant power in the event of a public health emergency, including the ability to “order compulsory vaccination of the entire population or any part of it.” While the Quebec government has not yet chosen to exercise this power outside the health and social services sector, the premier recently stated that employers have the right to require the vaccination of their employees in order to ensure the safety of their employees and clients.

Following the multitude of government announcements, a number of prominent employers have stepped forward and declared that they are implementing mandatory vaccination policies, including five of Canada’s largest banks, the city of Toronto, and a number of large law firms.

Unfortunately, despite the appearance of public support, there is one thing that can be said for certain about mandatory vaccination policies in such a rapidly evolving landscape—implementation does not come without significant legal risk.

From a strictly legal standpoint, employers in the non-unionized context have the right to manage their workplace as they see fit. This includes implementing policies that apply to all employees and potential employees. Canadian employers also have an obligation, in accordance with provincial health and safety legislation, to maintain a safe working environment for their employees. In this context, and from a purely legal perspective, there is nothing legally prohibiting an employer from establishing and implementing a mandatory vaccination policy. However, implementing such a policy does not come without significant legal risks, including privacy concerns, human rights issues, constructive dismissal claims, and potential class actions if it is later determined that the COVID-19 vaccine has long-term side effects.

Privacy Concerns

In order to enforce a mandatory vaccination policy, employers will necessarily be required to collect information regarding their employees’ and potential employees’ vaccination status. This type of information is highly sensitive and personal, and carries with it potential privacy implications.

“Privacy commissioners have indicated that, so far, they do not consider there to be adequate scientific evidence to confirm that vaccines successfully prevent transmission of COVID-19.”

As of the current date, no Canadian privacy commissioner has confirmed that collection of vaccine-related information is permitted under the privacy law. In fact, Canadian privacy commissioners have strongly cautioned that the potential benefits of vaccine verification programs (“vaccine passports”) must be weighed against the encroachment on the civil liberties of individuals and their right to privacy. As a result, an employer would generally need to show the following in order to lawfully require disclosure of an employee’s vaccination status:

  • There is evidence to support that vaccine passports are necessary and likely to be effective at achieving the public health purpose(s) they are intended to address, and will remain effective throughout their lifecycle;
  • There are no less privacy-intrusive measures available and equally effective in achieving the public health purpose(s);
  • The privacy risks associated with the vaccine passports are proportionate to the public health purpose(s) they are intended to address; and
  • The vaccine passports collect, use, and disclose the least amount of personal health information possible.

Privacy commissioners have indicated that, so far, they do not consider there to be adequate scientific evidence to confirm that vaccines successfully prevent transmission of COVID-19. It is arguable then that, until further scientific evidence emerges, attempting to rely on reducing transmission in the workplace as the purpose of vaccination verification may not be found to be reasonable by the privacy regulator, particularly if less privacy-invasive measures (such as continued social distancing and masking) are as effective in achieving this purpose.

The privacy commissioners have also cautioned that employers who require or request that employees present evidence of vaccination status must ensure that they have a “clear legal authority” to do so for each intended purpose. To date, the commissioners have not yet pointed to any existing authority that affirmatively allows employers to request or compel that an individual show their vaccine passport in order to attend work. It is possible that a new law, an amendment to an existing law, or a public health order could be issued in the coming months that clarifies this point. However, for now this introduces additional uncertainty with respect to whether vaccine passports are lawful.

Human Rights Issues

Under the Quebec Charter of Human Rights and Freedoms and the Civil Code of Quebec, employees are entitled to the protection of their physical well-being and the right to integrity of their person. Similarly, employees from other provinces are protected by the Canadian Charter of Rights and Freedoms, which provides that every person has the right to life, liberty, and security. It is thus questionable whether mandatory vaccination could be deemed a violation of these fundamental rights and freedoms.

In addition, there is human rights legislation across the country, and federally, that prohibits discrimination in employment on certain grounds, including disability, religion, and political ideology (in some jurisdictions). All of these protected grounds could potentially justify an employee’s refusal to receive a vaccine. If an employee refuses to be vaccinated for a reason that is protected under human rights legislation, the employer will have a legal obligation to accommodate this employee to the point of undue hardship. While accommodation will vary from person to person, it may take the form of working remotely, regular testing, masking, or social distancing requirements.

Consequently, any mandatory vaccination policy must ensure that employees who cannot be vaccinated for reasons protected under human rights legislation will have the ability to receive accommodation, unless it imposes an undue hardship on the employer.

Currently, there have been no human rights decisions regarding mandatory vaccination policies, however, on July 13, 2021, the BC Human Rights Commissioner weighed in on the issue and provided some indication of how a human rights tribunal may look at such a mandatory policy, at least in British Columbia. The BC Commissioner indicated that employers can in “limited circumstances” implement a mandatory vaccination policy where less intrusive means of preventing COVID-19 transmission are inadequate for the particular workplace and if due consideration is given to the human rights of everyone involved.

In particular, the Commissioner stated:

Vaccination status policies should be justified by scientific evidence relevant to the specific context, time-limited and regularly reviewed, proportional to the risks they seek to address, necessary due to a lack of less-intrusive alternatives and respectful of privacy to the extent required by law. In applying such a vaccination status policy, duty bearers must accommodate those who cannot receive a vaccine to the point of undue hardship.

The guidance emphasizes not only the need to carefully consider the particular workplace in question, but also the need for scientific evidence to support the necessity and effectiveness of a mandatory vaccination policy. It is arguable that current medical data is insufficient to demonstrate that such a policy would reduce harm by limiting transmission of the virus in the workplace. We continue to monitor medical data as it becomes available.

Constructive Dismissal Risks

Implementing a mandatory vaccination policy also brings the risk that an employee may allege a constructive dismissal. Constructive dismissal occurs where an employer has not expressly terminated an employee’s employment, but a termination can be deemed (or “constructed”) from the employer’s conduct.

An employee may be able to validly assert a constructive dismissal claim if the employer has made a unilateral and fundamental change to the terms of an employee’s employment relationship. Constructive dismissal claims frequently arise when an employer significantly decreases an employee’s pay, demotes the employee, or significantly changes their duties. However, to date, there have not been any legal decisions that consider constructive dismissal in the context of requiring the COVID-19 vaccination.

It is possible that requiring employees to become vaccinated or provide proof of vaccination status, as a condition of continued employment, could be a fundamental change to the terms of employment of existing employees. The employer could try to justify these requirements for health and safety reasons, but this rationale could face challenges on the basis that public health guidance does not currently mandate vaccination.

Dealing with Failure to Comply

Despite the legal risks associated with implementing a mandatory vaccination policy, it is clear that a number of employers are prepared to take the plunge. Given the community divergence on vaccinations generally, this will inevitably mean that employers will now wrestle with how to deal with employees who refuse to comply with mandatory vaccination policies. The question that is no doubt on the top of all employers’ minds is, “Can an employer terminate an employee who refuses to get vaccinated despite a mandatory vaccination policy?”

The answer is not necessarily straightforward. It is clear that if the employee’s refusal to comply with a vaccination policy involves a protected ground under applicable human rights legislation, the employer has an obligation to accommodate that employee to the point of undue hardship. On the other hand, if the employee’s refusal to comply with a vaccination policy is a result of the employee’s personal preference, it is more complicated.

Given the unprecedented nature of the pandemic, there is no case law to guide employers on this issue. Further, it will likely take years for any claims on this topic to make their way through the courts. What we do know is that, in most Canadian jurisdictions (aside from Quebec and federally), an employer is entitled to terminate an employee at any time, and for any reason (other than reasons connected to a protected ground under applicable human rights legislation), provided that the employer provides the employee with appropriate notice or with pay in lieu of notice. If an employee engages in serious misconduct, the employer can dismiss for “just cause” and is not required to provide any notice or payment in lieu of notice.

“Just cause” has been described as the “capital punishment” of employment law, meaning that the threshold to uphold such a termination is high. In normal circumstances, an employee’s violation of a company policy would very rarely constitute “just cause” for termination.  Although it is more likely that a refusal to get vaccinated (in violation of a policy) that impacts the health and safety of the workplace or puts other employees at risk could constitute “just cause” by law, such a circumstance would likely only arise if an employee was to completely disregard an employer’s policy and attend the workplace without being vaccinated, or if an employee was to lie regarding his or her vaccination status.

The more likely scenario for employers is a termination without cause for failure to obtain vaccination, in which case the employer will be required to provide the employee with notice of termination or pay in lieu of notice. An employer may also opt for lesser forms of discipline, such as placing the employee on an unpaid leave of absence until such time as it is safe to return to the workplace without the requirement to monitor vaccination status. Such discipline is likely to be reasonable in the current pandemic state.

An employer’s ability to terminate an employee for refusal to comply with a mandatory vaccination policy will also be dictated by any government orders affecting the workplace. If a government order mandating vaccination directly applies to a given workplace, and an employee refuses to be vaccinated in violation of a government order, an employer will have stronger grounds to allege that the employee was terminated for “just cause” without the need to provide any notice or pay in lieu of notice.

Recommendations for Minimizing Risks

In light of the above issues and considerations, when implementing a mandatory vaccination policy, we would recommend the following safeguards:

  • Employees who cannot be vaccinated or who refuse the vaccine for human rights reasons, such as disability, religion, or political ideology (as applicable), must be provided with accommodation (i.e., regular testing, masking and social distancing measures, remote work options, etc.), unless it would amount to undue hardship.
  • Require vaccination for employees who will report to work at the office. If employees can work remotely without disrupting the employer’s operations, they can continue to do so without being fully vaccinated.
  • Employers should tread carefully when considering the termination of employees who refuse to be vaccinated. Rather than terminating these employees, it may be more prudent to place them on an unpaid leave of absence until they are fully vaccinated or until the COVID-19 public health situation changes.
  • In accordance with privacy legislation in existence in certain provinces and at the federal level, employees must be notified of the purposes for which their information will be used. Employees should also be notified of any intended disclosure or sharing of their information, as well as who to contact to request access to, and correction of, vaccination information. If disclosure of vaccination status is voluntary, the employee should be provided with sufficient information to make an informed choice (including regarding any consequences flowing from their decision). In addition, if the information will be transferred or stored outside Canada, additional notices should be required.
  • The employer should minimize the information that it collects. If the employer can achieve its objectives by asking employees to self-report their vaccination status, this would be preferable. With respect to retaining vaccination information, we would recommend that the employer not retain a copy of vaccination certificates. Rather, the employer could ask employees to show their certificates (if deemed necessary), and then keep a record that this was checked and that the individual has been vaccinated. This information should be kept separate from their personnel files, safeguards should be implemented to protect this sensitive health information, and the information should be retained for only as long as it is reasonably necessary to achieve the purposes for which it was collected. In terms of who should collect the vaccination information, a trusted HR person may be the best option. The employer should maintain the confidentiality of vaccination status to the greatest extent possible, including limiting disclosures to only those with a strict “need to know.”

The legal landscape pertaining to vaccinations is evolving in real time, and what may be true today of vaccinations may not hold true tomorrow. While the implementation of a mandatory COVID-19 vaccination policy is a good option to maximize an employer’s compliance with its obligations to protect the health and safety of its workforce and to increase the comfort level of employees returning to the physical office, this decision is not straightforward and not without legal risk. The decision to adopt such a policy should be made after carefully considering the various issues and the level of risk that each employer is willing to accept.

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