Since late 2020, the conversation about mandatory vaccination and questions regarding employer rights has been an evolving target. In December 2020, the first person in Canada received their first dose of the COVID-19 vaccine. This began Stage 1 of the vaccine rollout. Now we are in Phase 4 of Canada’s vaccine rollout, and 80% of eligible Canadians has received one vaccine and 64% are fully vaccinated. With the vaccine being widely available now and the latest wave of Covid moving through the province, can employers require mandatory vaccinations or ask for proof of vaccination?
Mandatory Vaccination: Recap of Prior Blog
In February 2021, we said that employers could probably not require mandatory vaccination based on previous examples. To recap in 2012 there was a similar yet different example of whether the BC Government could make it mandatory for health care workers to receive the influenza vaccine. The 2012 version of the mandatory vaccination policy was to require employees to be in “compliance” by either being immunized or by wearing a mask. An employee’s failure to do one of these would result in “non-compliant” employees losing hours or facing dismissal.
We believed that if a similar policy were enacted to require mandatory Covid-19 vaccination claims of wrongful dismissal would be highly likely. This would be due to the fact that employees could point to alternatives available to employers. Based on WorkSafeBC’s standard guidelines prior to the vaccine being available, examples include mandatory masks, social distancing, working remotely and maintaining cleaning protocols. These would all continue to be viable alternatives to a mandatory vaccination policy until herd immunity is achieved.
Under the laws as it stood in February 2021, we said that employees that did not follow mandatory vaccination policies should be allowed to follow WorkSafeBC’s alternative safety measures instead of facing dismissal or loss of hours. That would keep a workplace relatively safe.
Some legal experts believed that employers would be able to implement mandatory vaccination. The likely rationale is that vaccination will be deemed a “bona fide occupational requirement” (BFOR) or that providing safe alternatives would impose an “undue hardship” on employers. While it remains to be seen what will happen, we believed it is unlikely mandatory vaccination will be viewed as a BFOR for most employers unless their unique circumstances can prove their case.
Click here to read our previous blog post.
Update On Mandatory Vaccination
As the latest wave of COVID works its way through the province and widespread availability of vaccines, we are starting to see more and more employers questioning whether they can have a workplace policy that requires staff to provide proof of vaccination. The answer, a typical lawyer response, is: it depends.
It will depend on a number of factors like whether there are any other safety protocols that could safely protect staff and the public short of a vaccine and how will people with protected grounds under the Human Rights Code be accommodated. We’ve now had about 16 months to see what is and is not feasible for our various workplaces. Some workplace changes that have been shown to be feasible include: remote work, rotating shifts so less people are present, masking, and reconfiguration of workspaces to allow for social distancing. There are also some positions that require hands-on in person contact which cannot easily be reconfigured (think care workers and food preparation staff).
The BC Office of the Human Rights Commissioner put out this very informative Brochure in July 2021 that discusses the duty to accommodate and vaccines.
As we previously said, employer mandatory vaccination policies are unlikely to be upheld legally, due to the alternative safety measures available. In the end, an employer is going to have to implement only those policies that are the least invasive as necessary in their unique context to protect their staff and the public.
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