This article was contributed by Samuel Keen and John Mastorin from Norton Rose Fulbright Canada
As in many other parts of the world, employers in Canada are bearing the brunt of the burden for ensuring that the general population is vaccinated against COVID-19. Unfortunately, taking on this burden entails the assumption of considerable risk, as mandatory vaccination policies engage numerous and often competing legal obligations. If employers are not careful, their good faith attempts to implement mandatory vaccination policies may result in unintended and potentially significant legal liability.
Below, we have outlined how to address some of the most common pitfalls with respect to mandatory vaccination policies.
Pitfall # 1: Not Considering a Mandatory Vaccination Policy
Given the difficulties and potential risks associated with implementing a mandatory vaccination policy, some employers may be tempted to simply not address the issue. Unfortunately, this is no longer a viable option for Canadian employers in light of the evolving COVID-19 situation in the country.
A number of Canadian provinces now require certain employers to implement a mandatory vaccination policy for their workplaces. Further, even if relevant government/public health authorities do not expressly require employers to enact a mandatory vaccination policy, occupational health and safety legislation in all provinces requires employers to take every precaution reasonable in the circumstances for the protection of their employees. Depending on the circumstances, these precautions may include enacting mandatory vaccination policies.
At the very least therefore, employers should engage in a robust assessment of whether it is necessary to implement a mandatory vaccination policy in their workplace(s).
Employers should begin this assessment by looking at the relevant legislation/regulations/directives regarding vaccination policies in the jurisdiction(s) in which they operate. The relevant requirements will vary from province to province, and in some cases, from municipality to municipality (Ontario employers, for example, are required to comply with mandatory vaccination guidance issued by municipal public health authorities).
Next, employers should evaluate the risk of transmission for each workplace. This workplace evaluation is important, as the employer may later be required to rely upon it to justify the reasons for its policy (or lack thereof).
The specific nature of the workplace will be key in this evaluation. For example, vaccination policies will be more defensible in workplaces with a higher risk of transmission or a vulnerable client population. The evaluation should be based on data, public health guidance, and specifics of the workplace, including factors such as exposure risks.
Pitfall # 2: Adopting a “One-Size-Fits-All” Approach
Another mistake employers should avoid is applying the exact same mandatory vaccination policy across all of the jurisdictions in which they operate. Instead, employers should make sure to tailor their policy to each jurisdiction in which they operate.
This tailoring is necessary because the laws/requirements relating to public health, anti-discrimination, and privacy vary between provinces. Accordingly, a vaccination policy that is reasonable and compliant with legal requirements in one province may be vulnerable to challenge in another province.
Ensuring compliance with jurisdiction specific laws is especially important with respect to privacy-related issues. For example, Alberta, Quebec and British Columbia have each implemented privacy legislation that governs personal information collected from employees. As such, vaccination policies may be subject to a slightly higher level of scrutiny in those provinces.
Pitfall # 3: Failing to Allow Exemptions
Mandatory vaccination policies should recognize that employees may have legitimate reasons for not getting vaccinated, such as medical or religious reasons. In such cases, depending on the jurisdiction, employers may have a duty to accommodate under relevant anti-discrimination legislation.
Notably, in some provinces political belief, political association and/or political activity are also protected grounds under anti-discrimination legislation, and it is possible that anti-vaccine beliefs could qualify for protection. Indeed, British Columbia’s anti-discrimination tribunal recently found that opposition to government rules regarding vaccination “could be” a protected political belief. However, it is unclear whether protection for political belief will meaningfully restrict an employer’s ability to enforce a mandatory vaccination policy, and we do not expect that provincial anti-discrimination tribunals will allow this protected ground to become an easy means to avoid vaccine mandates.
To date, anti-discrimination case law has not provided any meaningful guidance on the need to provide religious-based accommodations to COVID-19 vaccination policies. However, some provincial anti-discrimination commissions have clearly stated that a mere personal preference against being vaccinated will not entitle an individual to protection under anti-discrimination legislation.
Ultimately, a blanket mandatory vaccination policy that does not carve out certain exceptions may be found to be discriminatory. Any request for accommodation or refusal to be vaccinated should be treated in good faith and reviewed case-by-case.
Key Takeaways
Implementing a mandatory vaccination policy in Canada requires employers to engage in a sometimes complicated juggling act to ensure compliance with their various legal duties. Failure to comply with any of these duties could make the employer’s policy vulnerable to challenge. However, following the above steps will do much to guard a mandatory vaccination policy against any such challenge.
