The approval of a COVID-19 vaccine by Health Canada may mark the beginning of the end of the pandemic, and the prospect of a return to more normal life. It has also raised a number of questions for employers about mandatory or incentivized vaccination, and differential treatment of employees based on vaccination status.
What We Know and Don't Know
Here is what we know so far:
- The Government of Canada has entered into advance purchase agreements for enough doses to vaccinate all Canadians.1
- There is currently no legal requirement for a person to receive a COVID-19 vaccine.
- A limited number of doses arrived in Canada this week and voluntary vaccination, prioritizing high risk populations, has begun.
- Widespread vaccination is expected to take some time and unfold over the course of 2021. 2
- Until widespread vaccination is complete, public health measures (e.g., social distancing, masks/face coverings, etc.) will continue to be important to prevent the spread of COVID-19.
- Public health guidance for workplaces, and government legislation and regulation(s) designed specifically for the COVID-19 pandemic, remain unchanged, and as of the date of writing continue to apply regardless of worker or customer vaccination status.
We are in the early stages of the government's immunization plan and there is much we do not know, including when the vaccine will be widely available, how long immunity will last, whether a vaccinated individual can still transmit COVID-19 to others, and whether there are any long term side effects, among other issues. 3 We also do not know whether and how the government will intervene on the issue of vaccination or differential treatment of individuals based on vaccination status.
Issues for Employers
At this stage, the question of mandatory vaccination may not be a practical one. The supply of vaccine is limited. What is available is being distributed by the provinces for voluntary vaccination of high risk populations. It will likely be some time before there is sufficient vaccine available in Canada for most employers to think about requiring vaccination. When it is more widely available, voluntary vaccination may address the issue. Public polling suggests that most Canadians are willing to voluntarily vaccinate – perhaps an indication of pandemic weariness and a desire to do our part to speed a return to normal life. 4
Employer mandatory vaccination policies engage employee human rights, privacy, and in unionized workplaces, collective agreement interests. These must be balanced against the employer and public interest in mandatory vaccination and considered in light of other measures available to prevent the spread of COVID-19 and fulfill workplace health and safety obligations. Employers have received limited guidance from government and regulators, but we are not completely without precedent. There is existing case law – mainly from unionized health and long-term care workplaces – addressing the mandatory vaccination of workers. In many but not all cases, mandatory vaccinations policies have been struck down by arbitrators. Some of these cases were decided in the context of flu breakouts at health or long-term care facilities, but none of these cases were decided in a global pandemic.
In current circumstances, for many employers, it may be difficult to defend a mandatory vaccination policy that is subject to legal challenge. This may change depending on the workplace, as the pandemic and immunization unfolds, and as we learn more about the vaccine. The outcome of the balancing of competing employer/public and employee interests in mandatory vaccination is extremely context specific. What is permissible in one workplace may not be in another. What is not permissible now may be permissible at another time as conditions change (e.g., a spike in cases, hospitalizations, or deaths), as more becomes known about the vaccines and their effects, or as the government intervenes. You only need to look at how the guidance on masks, temperature checks, and mandatory health screening of workers has evolved during the pandemic to see how quickly and completely things can change. In some scenarios, employers may be better suited to encourage employee vaccination short of requiring it.
When more Canadians are vaccinated, questions will arise about whether it is permissible to ask if someone is vaccinated and whether we can treat people differently in employment or in providing services based on vaccination status. There is talk of "vaccination passports" as a condition for international travel. Others see a vaccinated workplace as a competitive advantage that may attract customers. These issues will not likely have practical impacts until well into 2021, but employers should already be turning their mind to them and seeking specific legal advice for their workplace and their plans.
We will monitor COVID-19 vaccine developments and issue further updates for employers. If you have questions about workplace issues arising from vaccination, please contact the authors or your regular Fasken lawyer.
3. National Advisory Committee on Immunization, "Recommendations on the use of COVID-19 vaccine(s)" (December 12, 2020), online.
4. See for example, CTV News, "More Canadians than ever willing to receive the COVID-19 vaccine: Angus Reid poll" (December 14, 2020), online.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.