With the rollout of COVID-19 vaccines underway in Ontario, many employers are now considering whether to implement mandatory COVID-19 vaccination policies.
For some Ontario employers, a mandatory vaccination policy may be advisable given their duties under the Occupational Health and Safety Act (the “OHSA”), including the duty to take every precaution reasonable in the circumstances for the protection of workers. Whether such a policy constitutes a reasonable precaution, however, is not yet entirely certain and will likely vary depending on the nature of each individual workplace.
While there is currently no governmental or public health guidance to assist employers with the preparation of a mandatory COVID-19 vaccination policy, it is clear from existing case law that employers wishing to implement such a policy will need to balance workplace safety against employees’ contractual, privacy, and human rights.
Given the intrusive nature of vaccinations on one’s bodily integrity, employers should first consider whether the circumstances of the workplace are such that vaccination should be mandatory for all employees before they can enter the workplace, or whether alternative measures (e.g., mask-wearing, handwashing, physical-distancing, etc.) could sufficiently protect against the safety risks posed by COVID-19.
A more detailed overview of the considerations employers should turn their minds to prior to implementing a mandatory COVID-19 vaccination policy is set out below.
The Jurisprudence: Basic Principles
The issue of whether an employer can legally introduce a mandatory COVID-19 vaccination policy has yet to be addressed by a court or adjudicative body in Ontario. However, arbitrators have previously considered the enforceability of mandatory flu vaccination and mask policies for unionized employees in the health and residential care sector. In such cases, arbitrators have held that, for these policies to be enforceable, they must be:
- consistent with the employees’ collective agreement (or employment agreement in the case of non-unionized employees);
- clear and unequivocal;
- brought to the attention of the employees;
- clear that a breach may result in discipline (this fact must also be brought to the attention of the employees in advance); and
- enforced consistently by the employer following their introduction.
The following cases provide helpful insight into how arbitrators have interpreted mandatory vaccination policies and the balance between employee rights and workplace health and safety.
In Trillium Ridge Retirement Home v SEIU, Local 183,  OLAA No 1046 (Emrich), the arbitrator upheld a vaccination policy requiring staff at a retirement home to either be vaccinated or take an antiviral medication during an outbreak of influenza at the facility. Employees who refused the vaccine or antiviral medication were required to remain off work without pay for the duration of the outbreak. The arbitrator found that the policy was reasonable in the circumstances because: (i) the employees were not compelled to be vaccinated but merely suffered temporary financial consequences if they refused; (ii) the evidence indicated that the vaccine was effective at controlling transmission and the severity of influenza symptoms; and (iii) the employees were informed as to the nature and purpose of the policy and the consequences of their refusal. Accordingly, there was a rational connection between the policy and the employer’s objective of protecting the health and safety of staff and residents at the facility.
Similarly, in Carewest v AUPE (2001), 104 LAC (4th) 240 (Smith), the arbitrator upheld a policy requiring non-immunized staff at care facilities for the elderly to remain off work without pay during an influenza outbreak. The arbitrator found that the policy was reasonable in the circumstances because the employer: (i) did not require anyone to choose between vaccination or losing their job; (ii) recognized legitimate medical and religious exemptions; (iii) only applied the policy to healthcare staff having frequent and close contact with patients; and (iv) did not exclude employees without pay for the entirety of the influenza season, but only during outbreaks where the risk of transmission was the highest. The policy therefore struck an appropriate balance between employee rights and the employer’s health and safety objectives.
Likewise, in Health Employers Assn. of British Columbia and HSA BC (Influenza Control Program Policy), Re (2013), 237 LAC (4th) 1 (Diebolt), the arbitrator upheld a policy requiring healthcare employees in various care settings to either be vaccinated against influenza or wear a mask during influenza season. The arbitrator found that the policy was reasonable in the circumstances because: (i) expert evidence demonstrated that immunization reduced the risk of transmission to patients and, on average, the risk of infection by 60%; (ii) the purpose and effect of masking was to prevent transmission and to provide an alternative form of protection; and (iii) the employer demonstrated a commitment to accommodating employees where necessary on a case-by-case basis.
A different decision was reached in Sault Area Hospital and Ontario Hospital Assn. (Vaccinate or Mask), Re (2015), 262 LAC (4th) 1 (Hayes) 1, where the arbitrator held that a similar “vaccinate or mask” policy for healthcare workers at a hospital was unreasonable because: (i) the purpose of the policy was to drive up immunization rates rather than to prevent the transmission of influenza to patients; (ii) little scientific evidence was presented to evaluate the risk that unvaccinated employees posed to patients; and (iii) limited evidence was presented to support the proposition that masks effectively reduce the risk of transmission.
Similarly, the arbitrator in St. Michael's Hospital and ONA, Re (2018), 295 LAC (4th) 109 (Kaplan) held that a “vaccinate or mask” policy for nurses at a hospital was unreasonable because: (i) there was insufficient evidence to demonstrate that asymptomatic or pre-symptomatic transmission was a significant source of infection; (ii) the employer failed to establish a link between vaccinations and the prevention of influenza in the workplace; and (iii) no persuasive evidence was adduced to demonstrate that wearing a surgical mask protected against influenza transmission.
Leaving aside any relevant distinctions in scientific data between the COVID-19 virus and seasonal influenza, the foregoing cases demonstrate that a mandatory COVID-19 vaccination policy will likely only be reasonable and enforceable where less intrusive alternatives have been considered (e.g., mask-wearing, handwashing, physical-distancing, etc.), and where scientific evidence supports the policy as effective to protect the health and safety of employees and those with whom they interact.
Human Rights Considerations
Under federal and provincial human rights legislation, employers have a duty to accommodate their employees to the point of undue hardship.
Employers seeking to adopt a mandatory COVID-19 vaccination policy will have to consider whether and to what extent they can accommodate employees who refuse to be vaccinated for a reason related to a prohibited ground of discrimination. Such grounds may include disability, sex/pregnancy, and/or creed.
Whether an employee can be accommodated in the workplace must be assessed on a case-by-case basis, having regard to the specific needs of the employee. Depending on the nature of the workplace, reasonable accommodation for employees who refuse the vaccine based on a prohibited ground of discrimination might include assigning the employee to work from home, placing the employee on a temporary non-disciplinary leave of absence until it is safe to return to work, or requiring the employee to wear personal protective equipment and to maintain physical distancing in the workplace.
Where the nature of the workplace is such that employees cannot work from home or are required to work closely with other people, such as in healthcare settings, the employer may be able to justify a mandatory COVID-19 vaccination policy as a bona fide occupational requirement. In such circumstances, employees would be required to receive a vaccination prior to entering the workplace.
Whether in the private or public sector, privacy legislation places strict limitations on employers with respect to the collection, use and disclosure of employees’ personal health information.
Employers seeking to adopt a mandatory COVID-19 vaccination policy will need to balance their obligation under the OHSA to ensure the health and safety of employees while also respecting their employees’ right to privacy.
Once an employer has determined that implementing a mandatory COVID-19 vaccination policy is essential for providing a safe work environment, it will have to consider what information employees are required to provide, what safeguards will be put in place to protect their information, and how the information will be securely destroyed when it no longer needs to be retained by the employer.
In the current climate, with the number of COVID-19 cases and the status of the rollout of vaccines in Ontario, the adoption of a mandatory vaccination policy may be premature for many workplaces.
However, as vaccines become more readily available, employers who are considering implementing a mandatory COVID-19 vaccination policy should consider taking the following steps prior to implementation:
- Review the employees’ employment contract(s) or collective agreement(s) and any applicable legislation to ensure that the policy is not inconsistent with same.
- Evaluate and weigh the objective evidence available regarding the health and safety risks posed by COVID-19 against employee human rights and privacy interests.
- Consider whether mandating COVID-19 vaccinations would be a reasonable measure in the particular workplace, or whether less intrusive alternatives could be appropriate.
- Ensure that employees will not be required to choose between vaccination or losing their job (even if they are unable to work for a period of time as a result of refusing vaccination).
- Determine how human rights accommodation requests will be addressed with respect to protected grounds such as disability, sex/pregnancy, and/or creed.
- Consider how employees’ personal health information will be safeguarded and destroyed when it no longer needs to be retained by the employer.
Employers seeking to adopt a mandatory COVID-19 vaccination policy should also consider any potential liability arising from an employee having an adverse reaction to the vaccine.
Employers who do choose to implement a mandatory vaccination policy should review the policy on an ongoing basis to determine whether it continues to be reasonable in light of current public health guidance.
For advice specific to your situation, consider contacting your regular lawyer at Rae Christen Jeffries LLP.
We will continue to monitor workplace related COVID-19 developments and provide further updates on this issue.