There have been two recent Ontario arbitral decisions dealing with mandatory vaccination in the workplace. In UFCW, Canada, Local 333 v. Paragon Protection Ltd., the Arbitrator upheld the employer's vaccination policy as a valid defence to the claim brought by the employer. Conversely, in Electrical Safety Authority v. Power Workers Union, the employer's vaccination policy was deemed unreasonable to the extent that employees could be disciplined or discharged for failing to get fully vaccinated. The decisions highlight two legal propositions that offer a degree of protection to an individual - protection of one's health and protection of one's autonomy:
- Under occupational health and safety legislation, employers have a legal duty to take all reasonable measures to protect the health and safety of their employees
- The health and medical information of employees is typically strictly confidential and private. An employer has a limited right to inquire about an employee's health status and medical care.
However, a mandatory vaccination policy may cause these principles to be in conflict. The British Columbia Office of the Human Rights Commissioner succinctly summarized the dichotomy in a recent statement:
"No one's safety should be put at risk because of others' personal choices not to receive a vaccine. Just as importantly, no one should experience harassment or unjustifiable discrimination for not being immunized when there are effective alternatives to vaccination status policies."
The difficulty from a legal perspective is balancing a collective interest versus an individual interest. More precisely the question is: when does a collective risk negate an individual right? As is often the dilemma in law: it depends. However, the different conclusions reached by the Arbitrators demonstrate that the assessment of the reasonableness of a vaccination policy is a highly fact specific exercise which closely examines the circumstances of the workplace. In some workplaces a mandatory vaccination policy will be deemed reasonable. In some workplaces, it may not. These decisions help illustrate some of the considerations that an employer should evaluate (with qualified legal advice) before proceeding with a mandatory policy:
- Does the workplace consist of vulnerable (e.g. the elderly or the immune compromised) employees or vulnerable customers?
- Do the employees work in confined spaces where the effectiveness of other health measures (distancing, ventilation, and masking) may be negated?
- Does the nature of the work require employees to be in close contact with each other or customers?
- Has there been an evaluation of the vaccination status of the employees to assess the actual risk posed by the unvaccinated?
- How could an employee who cannot be vaccinated for medical or religious reasons be accommodated in the workplace?
- Have employees been working remotely during the COVID-19 crisis?
- Could unvaccinated employees work remotely without a significant impact on the nature of the business?
- Has there been a previous outbreak at the workplace and if so, did it significantly affect business operations?
These questions illustrate the importance of an employer considering what actual risk a mandatory vaccination policy will negate. If the policy is challenged by an employee as an intrusion on their individual rights, the employer will be required to lead convincing evidence that it proceeded in a reasonable manner in order to protect the health and safety of its employees and clients. The takeaway from this post is that there is no singular approach for vaccination policies applicable to all workplaces. Context is everything. A full and objective review of the workplace and its COVID-19 risks should be considered prior to requiring employees to be vaccinated.
About Mackrell International - Canada - Lindsay Kenney LLP is a full service business law firm with offices in Vancouver and Langley, BC and a member of Mackrell International. Mackrell International - Canada is comprised of four independent law firms in Alberta, British Columbia, Ontario and Quebec. Each firm is regionally based and well-connected in our communities, an advantage shared with our clients. With close relations amongst our Canadian member firms, we are committed to working with clients who have legal needs in multiple jurisdictions within Canada.
This article is intended to be an overview and is for informational purposes only.