By Stephanie Cousineau and Kim Darling.
In December 2020, the first person in Canada received their first dose of the COVID-19 vaccine. So began Stage 1 of the vaccine rollout, during which the government expects over 5 million people will be vaccinated. Another 12 million are expected to get their shots during Stage 2 (between April and June 2021), and it’s hoped that, by September, everyone who wants the vaccine should have it.
Right now, front-line health care workers are reportedly giving distanced high-fives to each other after their first shots. Soon enough, however, we expect to hear reports from those who are less enthusiastic—and possibly totally unwilling. What will this mean for the workplace? Can employers create a safe environment by requiring that their staff be vaccinated?
Employers attempting to get “back to normal” by making vaccination mandatory for their employees would likely fail, based on the analogous (yet clearly very different) 2012 example of the BC Government making it mandatory for healthcare workers to receive the influenza vaccine, and the current state of the law.
The 2012 policy to immunize healthcare workers against the seasonal flu failed because there was the threat of punishment attached to employees’ non-compliance. Back then, “compliance” meant either being immunized or wearing a mask – if you didn’t do one or the other, you could face losing hours or even dismissal. That’s similar to the situation we are considering here (mandatory vaccination) – except that most of us are already wearing masks, regardless of whether we’ve been vaccinated. If employees are faced with “get vaccinated or you’re fired”, our guess is that claims of wrongful dismissal won’t be far behind.
If anyone were fired for not being vaccinated, they would likely (and rightly) point to the alternatives available to their former employer. Right now, WorkSafeBC requires that every employer have a COVID-19 Safety Plan, and provides a template plan on its website as guidance. Whatever measures employers put in place to meet this WorkSafeBC standard prior to the vaccine being available — mandatory masks, social distancing, working remotely, and/or cleaning protocols — would continue to be a viable alternative to the vaccine until the point that herd immunity is achieved. Under the law as it stands today, employees who can’t or won’t vaccinate should be allowed to follow the existing safety measures as these have already been determined adequate to keep the workplace (relatively) safe.
There are some legal experts (like Financial Post columnist Howard Levitt) who claim employers will be able to require vaccines. The likely rationale here is that the vaccine will be found to be a BFOR under human rights law – that is, a “bona fide occupational requirement”, or, “without it, you can’t do this job.” In our experience, BFOR cases are never black and white – whether something is a bona fide occupational requirement depends on the context and the unique circumstances of each workplace – we would argue that it is extremely unlikely that the Courts would deem the COVID-19 vaccine a BFOR for all jobs such that any employer could require it.
On the other hand, in a legal BFOR analysis, the Courts would also have to consider whether providing safety alternatives to the vaccine would impose an “undue hardship” on the employer. It’s true that some jobs simply can’t be done from home, and, in smaller workplaces, social distancing just isn’t an option. However, any workplace that has been functioning with WorkSafeBC-approved measures in place could have a tough time proving “undue hardship” – in which case, the vaccine would not be considered a BFOR.
It remains to be seen if the law in this area will change to account for COVID’s special circumstances, as it has in so many others. For right now, we’ll leave you with this:
There are clearly good reasons for not allowing employers to decide whether an employee gets vaccinated. Putting issues of safety aside, most of us would likely agree that letting employers dictate their staff’s medical treatment is the start of a slippery slope. A mandatory COVID vaccine today…what can we expect tomorrow?