Employment lawyer Ryan Watkins says question is ‘hot topic of the day’ from clients
As seniors and frontline health-care workers begin the largest mass vaccination in Canadian history, many of Ryan Watkins’ clients are asking if they can require their employees to be immunized against COVID.
The answer is a qualified yes. Watkins says employer’s must start with the premise that under the Occupational Health and Safety Act, they have a duty to protect their workers.
“With a highly contagious virus that has caused a global pandemic, if there's an antidote, employers are within their rights to require employees to take it to keep the rest of the workforce safe,” says Watkins, partner at Whitten & Lublin Employment Lawyers, in Toronto.
In some contexts, the argument in favour of employers requiring a vaccine is even stronger. In retail, where workers interact with the public, or long-term-care homes, where they deal with a vulnerable population, if an employee refuses to take the vaccine, their bosses would be within their rights to dismiss that employee without cause, he says.
The exception is where an employee has a credible human rights claim, says Watkins. An employee may object to taking the vaccine on religious grounds, or because they have an allergy or other medical condition. While the employer has the right to ask questions and verify the claim, a bona fide human-rights issue will trump the employer’s interest in protecting the health and safety of the workplace through mandatory vaccination, says Watkins.
The COVID vaccines are a solution to the grave risks currently faced by Canadian employers if the virus spreads in their workplace, said employment and labour lawyer Howard Levitt, at a recent Canadian Lawyer Magazine webinar. There is a $10-million fine for COVID carelessness under the Ontario Emergency Management and Civil Protection Act. If employers fail to keep the workplace sufficiently safe and in compliance with the relevant standard of care – currently the prescription of public health authorities – employers also face the “well-trodden action for negligence,” said Levitt, senior partner at Levitt Sheikh Chaudhri Swann Employment + Labour Law.
“Any one of these negligence actions for death, and maybe proximate deaths of family members who then end up dying or getting permanently immunocompromised, can bankrupt a lot of Canadian companies,” he said.
And while there is a “clear conflict” between privacy rights and workplace safety, throughout the pandemic the law has consistently leaned toward safety, said Levitt.
“Yes, there will be fact-based distinctions in every given circumstance,” he said. But given the huge potential penalties, multiple pieces of safety legislation and the views of public health authorities establishing duty of care, it is clear the courts will make refusing a mandatory vaccine cause for discharge, said Levitt. He added the two exceptions will be human rights exemptions for religion and disability.
Christopher Munroe, a labour, employment and human rights lawyer with Roper Greyell LLP, told Canadian Lawyer the question of mandatory workplace vaccinations is “very much a live issue with very good arguments on both sides.”
“To most of us, who believe in science, we’re probably not too concerned about it,” says Munroe, who practises in Vancouver. “But fundamentally, you’re asking someone to make a pretty personal decision about their body and what they want to do with it, and that’s difficult because it engages privacy concerns. And those privacy issues are closely guarded. Particularly by arbitrators in a unionized setting.”
The issue has arisen with seasonal and annual flue vaccines, says Munroe. Arbitrators and courts have found the requirement is unreasonable, but he adds that COVID is much more deadly and contagious than the flu. Munroe expects a distinction between union and non-union environments will emerge, with non-union workplaces more easily imposing mandatory vaccinations.
“But I expect if it’s going to be allowed, it will only be for a very narrow subset of employees who are dealing with vulnerable populations in a healthcare-type setting,” he says.
Munroe doubts an employee refusing a “general requirement” to get vaccinated will amount to just cause. But employers will likely be able to fire an employee without cause, he says. “And I’m not sure what the employee would do about that. I don’t think there would be any special cause of action.”
“I think a lot of employers are probably going to get away with the requirement. But if challenged, I’m not sure courts are going to say that it amounts to just cause,” he says.
*with files from Tim Wilbur