Employment and labour lawyer Chris Drinovz. (Contributed photo)

Employment and labour lawyer Chris Drinovz. (Contributed photo)

Can employers require an employee to get vaccinated against COVID-19?

It depends, writes employment and labour lawyer Chris Drinovz

Q: Can an Employer Require Employees to Get the COVID-19 Vaccine?

A: Currently in British Columbia there is no specific legislation requiring employees to get vaccinated but note that this could evolve once the vaccine is available to the public at large.

The short answer to this question is yes, generally non-unionized employers can require employees to get the vaccine (with certain exceptions discussed below).

B.C. employers have an obligation to ensure the health and safety of all workers in the office or on the jobsite under section 21 of the Workers Compensation Act.

Nature of Workplace

Each employer will have to assess its specific workplace and make a fundamental decision as to whether it needs all employees to receive the vaccine or provide a vaccination certificate to make the workplace safer. There may be workplaces where social distancing, wearing masks and washing hands may be determined to be sufficient protection for all or certain departments or areas of the workplace. Requiring all employees to receive the vaccine is a fundamental issue that can be controversial and lead to legal action against the employer.

Refusals and Terminations

Employers can’t physically force employees to get the vaccine, but they can make the COVID-19 vaccination a condition of continued employment. Depending on the nature of the employment and the risk associated with it, certain employers have a stronger case for making the COVID-19 vaccination a condition of employment (e.g hospitals, medical clinics, long-term care, group homes, retail, service industry).

The more interesting question becomes whether an employer can terminate an employee who refuses to get vaccinated against COVID-19. The answer to this is: it depends on the reason for the refusal. If the reason involves a protected ground under the BC Human Rights Code, such as a physical (medical) disability or religious grounds, then the employee may have a human rights claim against an employer who terminates on the basis of the protected ground.

If the reason is mere personal preference that is unrelated to a protected characteristic, then the employer can terminate an employee, provided they offer the appropriate notice or severance pay mandated by the employee’s written employment contract or, in the absence of a written contract, the common law. In the case of unionized workplaces, the employer should pay special attention to the collective agreement in place and seek advice from an experienced labour lawyer prior to terminating or disciplining an employee.

Mandatory vaccination is not without precedent in Canada. Some examples of mandatory vaccinations (or mask) policies include public school settings for some provinces and healthcare settings involving mandatory vaccination policies or “vaccine or mask” policies in relation to seasonal influenza.

In an Ontario case, Barkley v Mohawk Council, 2000 CarswellNat 3877, a nurse working as a non-unionized employee on a term contract at a federally regulated adult care facility was terminated for refusing to comply with the mandatory influenza immunization policy on the basis she had never been sick with the flu. The Arbitrator found the decision to impose vaccination was not unreasonable and upheld the termination. While this case dealt with the unjust dismissal provisions of the Canada Labour Code, its principle may be applied in provincial cases.

Privacy, COVID-19 Vaccine Policy and Recommendations

Employers should keep in mind that even asking an employee whether they have had the vaccination and requesting proof of vaccination or a vaccination certificate is a collection of personal information/personal health information triggering privacy considerations. Any employer should be mindful of the privacy legislation that applies to them.

Employers should evaluate whether implementing a vaccine verification program is integral to providing a safe workplace and ensure that such a program does not unreasonably infringe on an employee’s privacy expectations.

Once an employer has made a decision, the employer should consider developing a policy on COVID-19 vaccinations. The policy should contain the following: authority for collection, statement of purpose, statement whether vaccination certificate will be required, statement on possible actions taken based on whether employee is vaccinated or not, statement on storage, sharing and destruction of the information. More details available in our article: bit.ly/workplacevaccination.

Takeaways for Employers

• Evaluate your workplace and your workforce to determine whether a (mandatory or optional) vaccination policy is advisable or necessary to meet the company’s obligation to maintain a safe and healthy workplace for all workers and to protect your clients/customers and the public at large;

• When facing an employee who refuses to get the vaccine, be sure to ascertain the reasons for the refusal and evaluate whether any human rights obligations are triggered before taking action against the employee;

• Prior to implementing a vaccine program, seek legal advice and review applicable privacy legislation.

This is not legal advice. If you are looking for legal advice in relation to a particular matter, please contact Chris Drinovz at cdd@ksw.bc.ca.

CoronavirusLaw and justicevaccines

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