COVID-19 vaccination: can employers make vaccination mandatory for employees?

Written by Suzanne Porteous and Ryan J. Barata

With the distribution of a COVID-19 vaccine in Canada commencing this week, many Canadians are likely wondering how the vaccine can hasten a return to normal life in 2021.

This includes employers and employees, who may be uncertain of their rights and obligations in the context of returning to work in an office environment, and for ensuring a safe and healthy workplace for employees and all customers of the business.

In the coming months, Canadians will also be aware of ongoing COVID-19 vaccination efforts in the USA (where both adult and child vaccination mandates have historically been used and enforced to varying degrees, including for military members and for health care workers in certain states), and wondering if the laws in Canada can similarly compel employees returning to a work place from remote working arrangements to be vaccinated at the direction of their employers.

The short answer is that it is unlikely that most employers in Canada could legally require COVID-19 vaccinations for their employees returning to the office.

There are some potential exceptions to this, including in the event of a governmental mandate requiring general populations to be vaccinated, or potentially requiring certain segments of the population be vaccinated.

NO GENERAL ADULT VACCINATION MANDATES IN CANADA

Unlike our American counterparts, and with very few exceptions, there is no legislated vaccination mandate in Canada. Those exceptions are only in two provinces – Ontario and New Brunswick¹ – where provincial legislation has been enacted that requires vaccinations for children in their school systems. Both of these legislative initiatives include exemption clauses for medical, conscience or religious exemptions to mandatory vaccination, and only apply to children in their school systems (i.e. there are no general legislative mandates requiring adult vaccination in Canada). While Manitoba used to require that children have the measles vaccinations to register for school, it is no longer a requirement and all vaccinations are now optional for Manitoba residents.

Alberta does not have any mandatory vaccination legislation; the Alberta government previously considered imposing provincial legislation similar to Ontario and New Brunswick for school children, but the initiative was never enacted into law.

WHERE COVID-19 VACCINATIONS MAY BE REQUIRED

Currently, limited adult vaccination mandates exist in different provinces or districts of Canada for specific segments of the population only, including for health care workers and workers in long term care homes. These mandates apply in parts of Ontario and New Brunswick, and across British Columbia (for health care workers). In Alberta, health care workers, including Alberta Health services employees (health care workers and laboratory workers), volunteers working in health care settings, and child care workers, are only recommended to receive certain vaccinations, including the annual influenza vaccine.²

Alberta has already stated that COVID-19 vaccinations for health care workers will be voluntary, and it is unlikely that a province-wide vaccinate mandate would be enacted by the provincial government. However, the provincial government would have the power to enact such a mandate under s. 38(1)(c) of the Public Health Act, which grants the provincial government sweeping powers in the event of an epidemic or public health emergency, including to “order the immunization or re‑immunization of persons” against the disease.

In the event of a federally-enacted vaccination mandate by the Canadian government, such a requirement would likely only apply to federally-regulated employees, unless, perhaps, the federal government enacted the vaccination mandate under its federal state of emergency laws or other unique powers, which may allow it to also apply to provincially regulated employees. Such an analysis is, however, beyond the scope of this blog.

In addition, if a large enough percentage of health care workers or long term care workers refuse to vaccinate voluntarily, there is always a possibility of a vaccine mandate being introduced by employers or even by the provincial government in order to protect public health.

NO DISCRIMINATION IN THE ENFORCEMENT OF A POTENTIAL VACCINATION MANDATE

If we do end up seeing vaccination mandates applied to specific occupational sectors, such as health care, long term care, or education workers, employers must ensure a mandate is enforced in a way that is consistent with provincial human rights laws, employment laws, and with the Canadian Charter of Rights and Freedoms³.

The mandate must not discriminate against those who do not receive the vaccine (for example, those who are exempted such as for medical reasons due to a chronic disease or for immunocompromised persons, or for religious or conscientious reasons). Note that the legal validity of other objections to receiving the vaccine, including based on personal preference, is largely uncertain at law, as this is a novel situation and as-yet unconsidered by the courts.

Most importantly, any employers who may be considering whether to impose a policy in their work place for employees to be vaccinated should consult experienced employment lawyers to advise them on the unique needs and circumstances of their business, to consider any potential liability, and to understand their obligations at law. Employers would likely need to re-allocate or accommodate employees who do not receive the vaccine once “business as usual” resumes.

Terminating an employee for refusing to be vaccinated could be grounds for a human rights or discrimination claim against the employer, although there may be certain types of positions where a Court or a Human Rights Tribunal would find that mandatory vaccinations are a bona fide occupational requirement and, therefore, termination of employment for failure to be vaccinated would not, in such cases, be unlawful. Such analysis is currently premature, and will only evolve as the pandemic continues and the control of the spread and eradication of the virus (through vaccinations and otherwise) unfolds.

Carscallen LLP’S Employment, Labour and Human Rights Expertise

Whether you are an employee or an employer, Carscallen’s experienced team of Employment, Labour and Human Rights lawyers can assist you. Our lawyers specialize in practical, individualized advice to help you understand your rights, duties and responsibilities as an employer or an employee.

Our team of lawyers provide tailored, proactive advice to help successfully navigate every stage of the employment relationship. We have the legal expertise to help minimize problems and disputes before they happen, as well as the ability to resolve conflict quickly and constructively when it arises.

Whether you are an employer with questions about your rights and obligations in the employment relationship, or an employee, any member of our Employment, Labour and Human Rights team can answer any questions you may have.

1
For more information on recommended vaccinations for health care workers in Alberta, please refer to: https://open.alberta.ca/dataset/58d31634-61d9-469d-b95f-f714719b923e/resource/a2d790a7-01f3-4b89-a701-0ac87ca7777a/download/aip-occupational-immunization-considerations.pdf
2
Under the Immunization of School Pupils Act, RSO 1990, c I.1, Ontario requires children attending primary and secondary school to have the diphtheria, meningococcal disease, pertussis, tetanus, polio, measles, mumps, rubella and varicella (chickenpox) immunizations; under the Public Health Act, SNB 1998, c P-22.4, New Brunswick requires children to have the measles, mumps, rubella, diphtheria, tetanus and polio vaccinations as a condition of school entry.
3
The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11.

*This update is intended for general information only on the subject matter and is not to be taken as legal advice.

Posted: December 17, 2020

Topics: Employment, Labour and Human Rights Law / Covid-19

Share: