Focus On
Closeup

Can employers mandate COVID-19 vaccination?

Tuesday, January 05, 2021 @ 1:24 PM | By Sharaf Sultan


Sharaf Sultan %>
Sharaf Sultan
With the news of the release of a COVID-19 vaccine, many employees will have questions and/or concerns about what this means for them in the workplace context. While this is uncharted territory in many ways, this article will provide some information and clarification for employees.

Can my employer mandate that I receive vaccine?

The Canadian government has not implemented any mandatory vaccination requirements nor has it expressed an intention to do so in the future. With that being the case, employers cannot mandate that members of their workforce receive the vaccination.

Specifically, in Ontario, the Occupational Health and Safety Act (OHSA) states that employers have a duty to provide a safe workplace. While employers may suggest that their employees receive the vaccine, it is not likely that the duty to provide a safe workplace will extend to permit mandatory vaccinations.  

Can I be dismissed if I refuse to receive vaccination?

Your employer cannot dismiss you if you choose not to receive the vaccine. However, depending on the workplace, your employer may require you to continue to work from home rather than physically attend the workplace.

If an individual works in a position that requires physical attendance in the workplace, they may be required to take an unpaid leave or take other safety measures (i.e. mask, gloves, frequent testing).

It is illegal for employers to offer incentives to employees who receive a vaccine or punishments to those who do not take the vaccine. Specifically, providing differential treatment to employees based on their decision to receive a vaccine would likely be deemed a human rights violation.

What if I work in a high-risk environment?

For employees who work in hospitals, care homes, air travel or other industries that have higher vulnerabilities, the answer is less clear.

Specifically, it may be possible for an employer to argue that a mandatory vaccination policy is essential due to the nature of the work. However, unless there is a public health or government directive to support mandatory vaccination, there is not much evidence of Canadian courts upholding vaccination policies.

Do I have to show proof that I have received vaccine?

Many employees have concerns about the privacy of their health information. This raises another concern surrounding vaccines in the workplace.

Employers would accordingly be wise to have a robust policy outlining the legitimate purpose for collecting that information, confidentiality provisions, as well as outlining how long the information is stored before it is destroyed to lawfully request proof of vaccination from their workforce.

Sharaf Sultan is the principal at Sultan Lawyers and focuses his practice on both employment and workplace immigration law. He can be reached at ssultan@sultanlawyers.com.

Photo credit / Tetiana5  ISTOCKPHOTO.COM
 
Interested in writing for us? To learn more about how you can add your voice to
The Lawyer’s Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.