Mandatory Vaccines in the Workplaceachkarlaw-admin
In Ontario, various COVID-19 vaccines have become readily available to the public. A growing number of people are receiving their first dose of the COVID-19 vaccine with second doses being scheduled for later this year. With the increasing availability of the vaccines and the duty of the employer to maintain a safe workplace environment, employers may be wondering whether they can implement mandatory vaccines in the workplace.
The Current Situation – Mandatory Vaccines in the Workplace
Currently, the law surrounding mandatory COVID-19 vaccine policies at the workplace is unclear. Such policies have not yet been tested in a legal venue to determine a clear answer to whether or not an employer can implement such a policy. As of now, neither the Government of Ontario nor any public health agencies have set out that a mandatory vaccination policy should be adopted in workplaces.
We can look to past decisions made with respect to mandatory vaccinations being required at work places for some guidance as to how a court or tribunal could rule on such an issue in regards to COVID-19. In the past, arbitrators have allowed for mandatory vaccination of certain diseases for private healthcare institutions. The criteria established by arbitrators is that the policy must remain consistent with the relevant collective agreement, the policy must be reasonable in the circumstances, the policy must be clear and unequivocal, it must be brought to the attention of affected employees, including mention of any discipline for a breach, and is consistently enforced.
It remains unclear whether a different set of criteria may be applied in respect to other types of businesses. It’s entirely possible that mandatory vaccination policies may not be reasonable for every workplace. For example, it would might make less sense for a mandatory vaccination policy to be enforced in a safe office environment as compared to healthcare workers.
Risks Involved in a Mandatory COVID-19 Vaccination Policy
The blanket application of a mandatory COVID-19 vaccination policy could open up the employer to liability for monetary damages or other legal issues. This could be from a union disputing any resulting discipline, or an employee bringing a claim for wrongful dismissal if the employee’s employment was dismissed with cause. Significant payouts could also be required for dismissals with and without cause, depending on the enforceability of the employment agreement and the employee’s bardal factors.
Another risk to the employer could come from a potential violation of the Ontario Human Rights Code. Some employees may not be able to receive a vaccination due to pre-existing health conditions or require related accommodations. Enforcing mandatory vaccines in the workplace on these employees could open up the employer to liability for damages at the Human Rights Tribunal of Ontario.
Overall, the implementation of such a policy would be wondering into untested legal waters. If an employer is considering the implementation of such a policy, they should consult an employment lawyer to ensure it is implemented in the safest possible manner.
If you are an employer considering the implementation of a mandatory COVID-19 vaccination policy or an employee with concerns about the implementation of this type of policy, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.
If you are a small or medium-sized company looking for full-service support with same day response, visit our CLO Program page for our strategic solutions.