Now that Canada has started to administer its first COVID-19 vaccine shots, many employers are wondering if they can require their workers to get vaccinated? A workplace mandate for vaccination seems like sensible risk management after a year of devastating costs for employers due to the pandemic.
What if My Employee Refuses to be Vaccinated?
But what can an employer do if an employee refuses to be vaccinated? As long as your employees are not unionized, in theory, employers have the right to terminate employment without cause for any reason unless it’s discriminatory. As long as the requirement or any policy related to vaccination doesn’t infringe on any human rights protection owed to the employee, the requirement is not discriminatory.
Of course, vaccines, however, are more complex than something like a dresscode or overtime policy. Employers will wade into very risky ground if they do try to force the injection of any substance into an employee. We encourage employers to ultimately take a wait and see approach for further public health and government guidance. In the meanwhile, one practical option is to offer up an unpaid leave for those employees who object.
Requiring an employee to be vaccinated when they have a good reason not to be – for example, they are immunocompromised and it is not recommended by their doctor – would likely be a human rights violation. An employee terminated for refusing or delaying in being vaccinated will be owed any contractual, statutory or perhaps common law termination pay to which they are entitled. This is because the refusal to be vaccinated likely won’t be just grounds for a termination with cause.
Is Refusing to Be Vaccinated Cause for Dismissal?
The bar for employers to prove that a termination was with cause is set at a high standard. And even if vaccination is a condition of employment under the employment contract, an employee refusing to comply with this condition will not necessarily be grounds for a with cause termination. An employee terminated for not getting the vaccine will in most cases still be entitled to notice of termination.
Can I Require Proof of Vaccination From My Employees?
There are privacy considerations in requiring proof of vaccination and use of that information. The employer’s handling of the personal medical information that forms the proof or lack of regarding an employee’s vaccination status must be guided by the narrow purpose of conducting the employment relationship. While an employer can likely require that employees provide this information, like all employee health information, it should be carefully stored and used only for its intended purpose.
Takeaways
While employers may have urgent business motivations for wanting to see immediate vaccination uptake in the workplace, threatening employees who refuse to be vaccinated with termination is hardly a risk-free fix. The industry of your organization will be an important factor to consider (e.g. long term care homes versus a fully remote office worker business). Employers will no doubt want to balance the business risks around an employee, customer or patient potentially contracting COVID-19 – particularly in an already economically volatile period – with individual employee legal and human rights.
In the lead up to wide availability of the vaccine, employers might have better success with an employee assistance approach to educating their workers about vaccine science. The same way employers invite financial planners or wellness coaches to address their workforce.
Providing employees with access to better information regarding the important public health and broader economic incentives of comprehensive vaccination could lead to them getting the shot without delay. It could also accomplish a bit of workplace restoration by reorienting your team towards recovery.
Whatever the approach necessary in your organization, contact us if you’re needing legal advice or assistance during this new development.
