Kevin Marshall
February 10, 2022
Mandatory Vaccinations in the Workplace: Navigating the Legal and Ethical Minefields
Rather than considering the wisdom, or lack thereof, of public policy pronouncements regarding vaccinations by governments or public health officials, my focus in this blog post is about the actual impact of Mandatory Vaccination Policies in the workplace, for both workers and employers.
Are Mandatory Vaccination policies legal?
Some have alleged that such policies are “illegal”. That is false. However, these policies must not violate human rights legislation. Therefore, to ensure a Mandatory Vaccination Policy complies with the law, two exceptions must be permitted:
1) Health - most notably an allergy to one or more components of the vaccine, as verified by a doctor; or
2) Religion - confirmation in writing from a religious leader that the religion in question does not permit vaccinations.
Both exceptions are rarely granted.
Are Mandatory Vaccination policies required?
If vaccination policies are almost always legal, are they required? The answer depends on the particular circumstances facing the employer and employees. Usually, the employer has discretion as to whether or not to bring in such a policy - and on what terms. The exceptions include nursing homes, hospitals and federal government offices, each of which require Mandatory Vaccination Policies.
For the majority of cases, the employer needs to look at the big picture, not the latest COVID numbers discussed in the media. Each employer has a duty to “reasonably” protect the health and safety of persons accessing the work premises. In the midst of a pandemic, that usually means a COVID protocol must be implemented and communicated to each worker. The content of that protocol will vary, depending on the unique circumstances of each workplace. The absence of such a protocol, or a protocol that is too lax under the circumstances, may result in a worker successfully suing the employer if he or she contracts COVID in the workplace.
Does it even make sense to implement a Mandatory Vaccination Policy?
The most important question for each employer to consider is the wisdom, or lack thereof, of a Mandatory Vaccination Policy. In today’s polarized era, it is entirely possible that an employer could be challenged, even sued, by one worker complaining that the vaccination policy is too strict and by another worker that it is too lax. Accordingly, an employer would be wise to consult with his or her workers collectively before implementing a policy - and meeting individually with those holding particularly strong opinions, such as privacy concerns.
The employer should also consider trends in the wider community, including public policy pronouncements and possible labour shortages or supply-chain issues.
Finally, the employer should consider the layout of the workplace. To what extent do employees interact with members of the public or with one another? Are social distancing, masks, PPE and hygiene policies sufficient to meet health and safety guidelines? Is working from home a viable option to minimize transmission of COVID?
What do the courts have to say about Mandatory Vaccination Policies?
Nothing, to date. (Expect some court judgments in the coming year.) But three Ontario Labour Board arbitration decisions provide a glimpse into what to expect, albeit within the context of a unionized workforce. Each arbitrator was open to allowing a mandatory vaccination policy. But equally, each arbitrator required that there be a rationale for such policies, based on the current needs of the workplace.
In short, a Mandatory Vaccination Policy is a viable option, but it must be carefully tailored to the needs of the workplace and changing circumstances.
