Law will likely support mandatory vaccination for employees.
Labour & Employment Law Group Sep 07, 2021
Written by Ed Canning.
Question: Can my employer force me to get vaccinated?
: Of course nobody is going to force you to get vaccinated. An employer might decide, however, that to protect the health and safety of other employees it is going to require employees to be vaccinated in order to show up to work and get paid.
If an employee claims an exemption under the Ontario Human Rights Code the employer has to give due consideration to whether the employee can be accommodated in the workplace without a vaccine.
Human Rights Code exemptions include a medical condition, religious belief or a belief based on one’s creed.
A medical exemption is going to have to be supported by a note from a medical doctor and they will be few and far between. Given the controversy over vaccinations any doctor will realize that if they write such a note there is a good chance they are going to have to back it up under testimony and cross-examination in some sort of legal proceeding if it is not an exemption based on solid medical reasons.
If an employee appears to have a valid Human Rights exception, the employer must consider whether they can be accommodated without endangering the health and safety of other employees and their families and contacts. Considerations would include whether or not an employee could work from home or work in a remote area of the employer’s facility with extremely limited contact with other employees. Another consideration would be whether the employee could be offered working hours when almost no one else is around.
None of this is to say that the employer has to make those arrangements if they are an undue hardship but it should make notes of having duly considered those options. If a Human Rights complaint is filed the employer wants to be able to show that it considered all options and none were possible.
I think employers would be precipitous to terminate employees for not being vaccinated even if they had no Human Rights exception that was being argued. If at all possible employers should simply indicate that the employee is laid off without pay until they are either vaccinated or circumstances change such that they are no longer a potential danger to vaccinated employees. Of course whether that will ever happen we don’t know. If the employer could prove, after some period of time, that keeping the job open would be an undue hardship it could then proceed with a termination. An employer bringing in a mandatory vaccination policy should give reasonable notice of the policy change so that employees have time before the deadline to receive their second vaccination and completed the 2 week period that it takes to become fully effective. For the same reasons as set out above an employer can also force employees to wear face masks and shields.
Daily we are seeing more and more announcements of mandatory vaccine policies. A month ago nobody wanted to be first but now the landscape has changed significantly. If legal challenges to vaccine policies are raised there is a good chance somebody else will have to spend the money to argue the first cases. It is frankly hard to imagine a human rights adjudicator being brave enough to decide that all employers who would not let someone work unvaccinated have to pay damages. Even if I am wrong it is doubtful the courts to which that decision would be appealed will agree