As the nightmare of COVID continues to dominate all aspects of our daily lives, it does appear as though hope is on the way. These unprecedented times have given rise to legal issues that few of us contemplated before. Now, with the vaccine on the horizon, other issues will arise. The issue that has been raised by my clients the most is whether employers can mandate that their employees take the vaccine, whether as a precondition to re-entering the workplace or otherwise.
The short answer is: unlikely.
To date, most Premiers have ruled out a requirement that all citizens receive the COVID shot and there is no Provincial or Federal rule requiring immunizations. Much like the recent mask mandates, public health officials could implement a vaccine mandate. However, there would still need to be exceptions for those with legitimate health, religious or even moral reasons for refusing.
I could also see industry-specific mandates being put in place for such workplaces as long-term care facilities or retirement residences. It is also likely that proof of vaccination will be a condition of entry in several segments of society (e.g. sporting events, live theatre and air travel).
That being said, employers should be very cautious if a situation arises where an employee refuses to take the vaccine. Terminating an employee in these circumstances could give rise to a Human Rights violation, in addition to obligations to provide notice or payment in lieu thereof.
The best course of action in this instance would be to speak to the employee to determine what his or her specific concerns are to see if accommodation is possible (such as continuing to work from home).
We know that there is a certain segment of the population that will refuse to take the vaccine, at least in the short term. Employers will need to balance the concerns of specific employees with the overall requirement to provide a safe and secure work environment.
The goal, of course, is to return to some semblance of normalcy and it remains to be seen how the law and society will adjust to these new issues. Given the turmoil that the pandemic has caused to date, I expect that the vaccine will solve more legal problems than it will create and having its availability as an option will certainly be an impetus to getting employees back to work and getting the economy back on track.
For further information on any and all employment law issues that either employers or employees are facing, please reach out to our specialists, Matthew Wise – [email protected] or Christine Jonathan – [email protected].
This article is not intended to serve as a comprehensive treatment of the topic and is not legal advice. All legal matters are dealt with pursuant to their specific facts and circumstance. Nothing replaces retaining a qualified, competent lawyer.