Your employer can’t force you to get vaccinated, but experts warn of challenges ahead

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Poll: Support for mandatory COVID-19 vaccination is falling in Canada
WATCH: Poll: Support for mandatory COVID-19 vaccination is falling in Canada – Nov 28, 2020

Canada’s first coronavirus vaccine could get the green light in a matter of days.

For many businesses, a vaccine promises employers a return to some form of normal. Many will be looking to recover profits while offering a safe and healthy workplace for both staff and customers.

But can an employer require you to get vaccinated in order to return to work?

“Generally, no, an employer can’t force an employee to get vaccinated,” said Andrew Monkhouse, a Toronto-based employment lawyer.

“The question becomes, though, can an employer terminate an employee because they don’t want to take a vaccination?”

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That’s where it gets complicated, said Monkhouse.

“If the reason for refusing the vaccine is not for medical or religious reasons, the employer could choose to push it as far as termination.”

Refusals could be valid

Though a mandatory vaccination policy won’t fly, employers will strongly encourage their employees to get the shot “for their safety and the safety of others,” said Lior Samfiru, the founder of the labour and employment law practice at Samfiru Tumarkin LLP.

Employers may even offer incentives, he said, though it’s unlikely it would be a monetary one.

“The incentive has to do with work conditions. It can’t be looked at as a punishment to those that have not been vaccinated,” he said.

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Incentives that differentiate employees or appear to treat those who have been vaccinated “better” than those who haven’t “could be considered a human rights violation,” said Samfiru.

“Do you want to be comfortable at work and not have to wear a mask for 10 hours? Then get vaccinated. That’s the type of incentive.”

But some employees may refuse, Monkhouse added, and some of the reasons for refusal will be legally valid.

Anti-discrimination laws would enable eligible employees to forgo getting a COVID-19 vaccine or be considered exempt from a company-wide mandate. By law, Canadian workers could request an exemption for medical, religious and philosophical reasons. The same exemptions apply at public schools in some provinces, like Ontario and New Brunswick, where children up to a certain age are required to be immunized against a number of infectious diseases to attend.

An employer who fires an employee who refuses to get a COVID-19 vaccine for such a reason could have a human rights violation on their hands, according to Monkhouse.

However, he said an employer can “technically” fire an employee whose reason for refusing a vaccine is simply based on choice or preference. But even then, it can get tricky, he said.

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“It’s also expensive to terminate people,” said Monkhouse. “Those employees would be owed a fair amount of money, of severance, which would discourage the employer from letting someone go.”

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Unionized situations would be different, he added, since employees can only be terminated for “just cause,” and the refusal to take a vaccine would “almost certainly not be considered cause.”

But all of this could potentially be a moot point if the government decides to intervene, Samfiru said.

“Short of that, an employer to take it upon themselves and implement a unilateral rule — that would likely be problematic.”

Mandate not on tap

Governments do have the power to implement rules that require vaccinations in the workplace or otherwise, but so far, it’s not the route being taken.

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Officials at both the federal and provincial levels have repeatedly said the vaccine, once approved, will be voluntary.

Alberta Premier Jason Kenney has gone as far as promising to change existing legislation to ensure there is no possibility the province could impose vaccinations. British Columbia’s chief public health officer, Dr. Bonnie Henry, said voluntary vaccination even applies among priority groups like hospital and long-term care workers. Just yesterday Ontario Premier Doug Ford came out against mandatory vaccinations.

The World Health Organization doesn’t foresee mandatory vaccinations being introduced or enforced globally either. The agency’s top emergency expert, Mike Ryan, said the world is “much better served to present people with data, present people with the benefits and let people make up their own minds, within reason.”

Samfiru said it’s possible the tone could change in the future, but it’s “preferable” the government doesn’t intervene at all. He said the hope is that enough people will be vaccinated on their own voluntarily.

Samfiru’s comments echo that of Ontario Health Minister Christine Elliott, who said Monday that “constitutionally” the government can’t force every single person to get the vaccine, but that “there may be some restrictions” that arise for those who opt out.

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Coronavirus: Ontario health minister says COVID-19 vaccine will be voluntary

The Ontario government announced Tuesday that it would issue residents proof of vaccination, as it may be required to access certain settings once the worst of the pandemic passes.

It’s something employers and workplaces should be thinking ahead about, experts agree.

“Termination, at the end of the day, is a bad idea, not only for legal reasons but certainly PR reasons,” said Monkhouse. “Nobody wants to be the first employer who terminates someone because they refuse to take a vaccine.”

Workplace changes

Employers may have other options, the experts say.

“A lot of companies are going to choose to say, ‘If you don’t get a vaccine, then you will continue to work from home, or we’re not going to be able to call you back,” said Monkhouse.

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“Later, when the government lifts the quarantine level, the rest of the workforce could be called back.”

To achieve herd immunity, only about 60 to 70 per cent of the population has to be vaccinated, according to infectious disease experts.

But if an unvaccinated employee can show that they can work safely by “engaging in other measures” — such as mask-wearing and physical distancing — and the employer still isn’t allowing that person to work, Samfiru said a human rights claim is possible.

The employer may have more flexibility if there’s public backlash about employees not being completely vaccinated, he added.

“If a business can show they’d have no customers, that no one would frequent their establishment or service until everyone was vaccinated, they’d have a lot more leeway,” he said.

It could very well come down to a competitive edge, added Monkhouse.

“In the same way you see places advertising sanitization, plexiglass, everyone wearing masks, I certainly think we’re going to see signs saying, ‘Everyone in this store has been vaccinated,'” he said.

“It might be that extra push to ensure everyone’s extra safe.”

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— with files from Reuters

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