July 22, 2021
With the widespread availability of COVID-19 vaccinations in Canada, employers are anxious to get their employees vaccinated and “back to normal,” employers are likely thinking about what they can do to return to pre-pandemic operations. The question then arises: can an employer require employees to get the COVID-19 vaccine? And, if an employee refuses, what options does the employer have?
Mandatory Vaccinations
A clear answer as to the scope of an employer’s authority to mandate vaccinations will require an individualized assessment of the origin and terms of the employment relationship.
For most private employment relationships, an employer will not be able to unilaterally mandate or require an employee to receive the COVID-19 vaccination. An employer who attempts to do so will likely be exposed to legal risks and potential liability arising from discrimination complaints, privacy complaints, claims for personal injury or constructive dismissal.
Just Cause for Dismissal
The law is unsettled as to whether an employer would have any legal remedy if a mandatory vaccination policy were implemented, and the employee refused to get the vaccination. The refusal may be unlikely to trigger termination for “just cause”, which has a high standard to meet. To terminate for just cause requires the employer to show that the employee did something inconsistent with their duties that reasonably indicates a risk of injury to the employer’s interests through continued employment.[1] The employee’s breach must be fundamental to the employment relationship in order to constitute just cause.[2] If an employment relationship did not previously have vaccination requirements, it is unlikely that the employer could impose a mandatory vaccination policy and successfully rely upon it to terminate for just cause, unless it followed a specific course of action. Any employer seeking to impose such a policy should receive guidance from a legal advisor.
Employer Remedies
Employers would do well to note that a breach of a workplace policy will only trigger just cause termination in specific, fact-based and narrow circumstances. The New Brunswick Court of Appeal created a list of factors in determining whether cause for dismissal has been established as a result of a breach of a workplace policy:
- whether the rule in question is reasonable and lawful;
- whether the rule is consistent with the employee's employment contract;
- whether the rule is applicable to the employee;
- whether the rule, including the consequences for a breach thereof, is known by the employee;
- whether the rule is clear, unambiguous and consistently enforced by the employer; and
- whether the employee's breach of the rule is sufficiently serious, in the circumstances, having regard to the employee's length of service, the employee's position, the nature of the rule and whether the employee has a reasonable excuse, such that the violation of the rule or policy is not merely an isolated transgression or an error in judgment, but a fundamental breach which evidences a repudiation of the employment contract or an intention to no longer be bound by a fundamental term therefore.[3]
Employers should consider these factors before implementing a policy which they intend to enforce and should also note their duty to provide a safe and harassment-free workplace for their employees. An employer should also turn their mind to whether a policy is reasonable or necessary for their specific workplace, consistent with government direction, and whether it has the effect of discriminating against any employees with protected characteristics.
Other considerations include whether the policy meets the criteria outlined above and seek legal advice before taking adverse steps against a vaccine-delinquent employee.
As an alternative to the “stick” approach of attempting to unilaterally impose a mandatory vaccination policy an employer may want to consider whether a “carrot” approach may achieve the same objectives. An employer may want to offer bonuses, gifts, time off or other perquisites to employees who choose to vaccinate and disclose their vaccination status to their employer.
Employee Remedies
In private employment relationships (in comparison to labour environments), employees do not have a clear mechanism to challenge improper workplace policies or disciplinary measures (except when these trigger constructive dismissal). As such, an employee may find themselves in the tough position of challenging their employer directly, being insubordinate against a workplace policy, or being harassed or bullied in the workplace if the employer implements a mandatory vaccination policy.
If an employee is terminated for just cause for failing or refusing to vaccinate, the employee should seek legal advice. It is possible that the vaccination policy does not establish just cause for dismissal, and the employee may be entitled to remedies as a result of a wrongful dismissal.
Privacy Issues
A mandatory vaccination policy which requires employees to disclose their personal health information may run afoul privacy laws. In response to the H1N1 pandemic, the Privacy Commissioner of Canada and the Information and Privacy Commissioners for Alberta and British Columbia issued a Guidance Document entitled “Privacy in the Time of a Pandemic” and cautioned:
From a privacy perspective, it is preferable for employers to focus on business continuity planning and communicating with employees about appropriate flu-prevention measures. […]
Instead of asking employees if they have been vaccinated, employers should provide employees with information about vaccinations, such as dates for vaccination clinics.[4]
In this vein, it is required to provide paid time off to employees to allow them to go and get vaccinated in Alberta. The Employment Standards Code was revised to provide each employee access to a paid leave of absence, up to three hours, to get vaccinated.[5] Note, an employee is not required to provide proof of vaccination or disclose any underlying medical conditions to access this paid leave.[6]
Permissible Vaccination Requirements
There are employment relationships where mandatory vaccination may be permissible, such as employment relationships with healthcare workers or in healthcare environments. Labour arbitrators have found mandatory vaccination is permissible as a condition of employment, but these are generally in public health workplaces.[7] Permissible policies in these cases have historically been mandated by statute or collective bargaining agreement but may be workplace specific. Where workplace policies are not created by statute, labour arbitrators have been divided in whether mandatory vaccinate-or-mask policies are a reasonable or a valid exercise of the employer’s residual management rights.[8] As can be seen by these decisions, with certain facts and workplaces, it may be reasonable to implement mandatory policies designed to mitigate the spread of infectious diseases. Again, employers should be cautioned to ensure that the policy and the consequences are communicated clearly, and that the policy does not cause harassment or discrimination to employees. In the case of discrimination allegations, employers should seek legal advice as to possible reasonable accommodations.
[1] Howard A. Levitt, “The Law of Dismissal in Canada” 3rd ed at §6:10.10.
[2] Levitt, supra note 2 at §6:20.40.
[3] Asurion Canada Inc v Brown and Cormier, 2013 NBCA 13. These are similar to the standards applied in unionized environments, as set out in the seminal case Lumber & Sawmill Workers’ Union, Local 2537 v KVP Co (1965), 16 LAC 73: (i) consistent with the collective bargaining agreement, (ii) the policy is reasonable, (iii) the policy is necessary, (iv) the policy has intended consequence, (v) the policy strikes a reasonable balance between employees’ rights and the objectives of the employer, (vi) the policy is clear and unequivocal, (vii) the consequences of the policy were communicated to the employees, (viii) enforcement of the policy is consistent.
[4] Accessible online at: http://www.llbc.leg.bc.ca/public/PubDocs/bcdocs/461633/gd_pan_20091028_e.pdf
[5] Employment Standards Code, RSA 2000, c E-9, s 53.9821(4).
[6] Employment Standards Code, s 53.9821(7).
[7] For example, see Carewest and Alberta Union of Provincial Employees, (2001) 104 LAC (4th) 240, where an employer implemented a workplace policy where non-vaccinated employees were not permitted to work, and would be placed on unpaid leave, during influenza outbreaks. The policy was implemented in facilities which offered care to the elderly. The labour arbitrator noted that the residents were particularly vulnerable. There was an exception to the policy; it did not apply to employees who obtained a physician’s note or asserted a religious exemption to exclude them from taking the vaccine. The arbitrator found that the policy was consistent with the legal tests for workplace policies in unionized environments and found that the policy was reasonable and properly applied.
[8] See two cases which came to opposite conclusions: Sault Area Hospital v Ontario Hospital Assn (Vaccinate or Mask Grievance), [2015] OLAA No 339 at para 33; and Health Employers Association of British Columbia v Health Sciences Association (Influenza Control Program Policy Grievance), [2013] BCCAAA No 138 at paras 197, 257.
DISCLAIMER: This publication is not legal advice and should not be relied upon as legal advice. While we intend to provide generalized information that is accurate as at the date of publication, it is possible that the information contains errors or omissions. We disclaim any liability for errors or omissions. Actions taken, or not taken, in response to legal concerns should be guided by individualized legal advice provided within a solicitor client relationship. The creation of a solicitor-client relationship can be discussed upon direct contact with a lawyer.