COVID-19 may have brought Canadians together in many ways, but a number of issues surrounding the pandemic have proven to be divisive on some level. Masking policies, stay at home orders, the forced shut down of many businesses, government compensation schemes or the lack thereof, testing rates, and delays have brought on many a heated debate. The rollout of vaccines – who gets them first, how they are administered, and the shortage of this highly in-demand product – is the issue dominating press conferences and front pages at this point. As we see COVID vaccines deployed across the Province of Ontario, the emerging debate is whether or not employers can mandate that employees be vaccinated. An important question, so far without a clear answer.
Like so many legal issues raised with COVID, there is no clear precedent. Helpful, though not determinative, is the caselaw dealing with "Mask or Vaccinate" influenza policies in the health care setting. Employers implemented policies mandating that workers either get the flu vaccine or wear a mask throughout their shift. Unions challenged these policies and a number of arbitral decisions addressed whether such policies were in violation of the collective agreement. Unfortunately, these decisions are divided.
Some arbitrators (see Health Employers Assn. of British Columbia v. the Health Sciences Assn1 and North Bay General Hospital v ONA2) found the employer's policy compliant, citing provisions of the collective agreement that specifically addressed vaccinations during an outbreak, directions from the Ministry of Health to employers to implement an influenza protocol, expert evidence supporting vaccination rates amongst health care workers and transmission of influenza to the patients, and the existence of the alternative of masking. In other decisions (see Sault Area Hospital and Ontario Nurses' Association3, St Peter's Health System v CUPE, Local 7784 and St. Michael's Hospital v Ontario Nurses' Association5), arbitrators found the policy in violation of the collective agreement citing a lack of "consensus" on vaccinating and masking and the prevention and control of influenza, a lack of mandating of the policy by a Medical Officer of Health or regulatory body, and that the scientific evidence available was insufficient to support a requirement for employees to wear masks for up to six months every year. In the St. Michael's Hospital case, the Arbitrator stated that the evidence supporting a masking mandate was "insufficient, inadequate, and completely unpersuasive".
I can clearly see some distinguishing aspects between the influenza 'Mask or Vaccinate' policies and the situation currently facing employers and workers in health care settings. COVID is much more infectious and deadly, vaccines are much more effective (95%6 vs. 20-60%7), and there has already been considerable research on the transmission of the virus and the efficacy of the vaccine.
Only one arbitral decision has been released to date dealing with mandatory COVID testing in a retirement home. Christian Labour Association of Canada v Caressant Care Nursing & Retirement Homes8 dealt with an employer's policy that staff be tested every 2 weeks for COVID. An employee refused to be tested and was placed on unpaid leave. In this case, the Arbitrator upheld the policy, finding that the testing requirement, even though it was intrusive to the individual, was reasonable in light of all of the circumstances.
Ontario does have a precedent for mandatory vaccination. The public school system requires students to submit evidence of their updated vaccines9, although there are limited exemptions for medical reasons and religious beliefs. Medical reasons require a "Statement of Medical Exemption" form to be submitted, signed by a doctor or nurse practitioner, and submitted to the local public health unit. The reason for the exemption must be indicated, such as a medical condition that prevents the child from receiving the vaccine. The religious belief exemption requires an education session to be completed at the local public health unit covering basic information about vaccine safety, immunization and community health, and immunization law in Ontario. A 'Statement of Conscience or Religious Belief' form must be completed, signed by a commissioner for taking affidavits in Ontario, and submitted to the local public health unit. These exemptions act to accommodate legitimate human rights that arise with such a mandatory vaccination program for grounds of disability and creed under Ontario's Human Rights Code.
So, will Ontario employers be able to mandate COVID vaccinations? That answer seems clear – no employer can physically force an employee to be vaccinated. However, where employers implement mandatory vaccination programs, and employees refuse to comply, what can be done? Can employees be put on unpaid leave? Be disciplined? Or terminated? Will employers be expected to try to find alternative work? Will they allow employees to work from home?
It will take time, but we will eventually see policy grievances in a unionized setting and challenges for terminations for a cause in both unionized and non-unionized settings where employees are terminated for refusing to vaccinate. While the jury is still out, I expect decision-makers will try to provide as much of a balancing act as possible between individual's human rights, privacy, and bodily integrity vs. the health and safety needs of the public, co-workers, and clients/patients/customers.
I expect that mandatory vaccination programs and terminations will be upheld in workplaces providing direct care, particularly of a vulnerable population in a congregate living situation, subject to human rights exemptions. The public school exemption program is a solid example of the type of protocol that I can see being followed.
Less clear in my mind is whether close physical workspaces like those in the manufacturing and construction settings will be subject to enforceable mandatory vaccination programs and terminations for cause. Unionized settings will likely face even greater resistance.
Lastly, much more 'sterile' work settings, like offices, where options exist for many employees to work remotely, offer up much more room for debate on an employer's ability to terminate for cause. While I expect employers may be able to place employees off on an unpaid leave where an employee refuses to vaccinate in a working environment where COVID can be transmitted, I am doubtful cause will be established on terminations. In non-unionized workplaces, employers may be looking at terminations without cause if they are not prepared to employ someone who refuses to be vaccinated, subject to human rights.
Like so many legal issues raised with COVID, we will need to wait and see if the government enacts any mandatory vaccine legislation (which it has said it is not intending to do) and the release of arbitral and court decisions before employers have any certainty about their right to demand that employees submit to COVID-19 vaccinations.
1 (2013) 237 L.A.C. (4th) 1,  B.C.C.A.A.A. No. 138
2 2008 CarswellOnt 9040 (Ont Arb)
3 2015 CanLII 55643 (ON LA)
4 2002 CarswellOnt 4709 (Ont Arb)
5 2018 CanLII 82519 (Ont LA)
7 Center for Disease Control, CDC Seasonal Flu Vaccine Effectiveness Studies, (accessed December 14, 2020).
8 2020 CanLII 100531 (ON LA) (Randall).
9 Immunization of School Pupils Act
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