By: Kim Nutz, Sunstone Legal, in association with West Legal
We are now in the thick of Canadians being able to get vaccinated against COVID-19, so what should you know about Covid vaccinations and the workplace? Many employers and employees are now wondering if an employer can require their employees to get vaccinated? Short answer is YES they can, BUT this is subject to some important legal qualifications.
Currently, public health authorities highly encourage people to get vaccinated, but it is not mandatory. As such, employers may only strongly encourage employees in all workplaces to get vaccinated. Unless it becomes a general legal requirement for Canadians to be vaccinated, there may be no basis for requiring vaccination of those employees working at home or in a remote or private office and who
commit to complete adherence to all COVID-19 health guidelines.
That being said, mandatory vaccination may be legitimately required in some workplaces. If challenged legally, mandatory vaccination would likely only be upheld where vaccinations are required because of the type of work performed, such as certain front-line positions; workers in long-term care homes, hospitals, or other critical care environments where employees are in regular contact with vulnerable health-compromised persons, or other types of employees who are customer-facing and customer-touching such as retail, personal services, etc.
In such circumstances, employers would be wise to simply terminate the employee without cause for refusing or failing to be vaccinated, subject to any human rights issues that may arise such as medical or religious accommodation needs. In most cases, under the human rights legislation, the employer has a duty to accommodate up to the point of undue hardship.
Depending on existing employment agreements and circumstances, an employer’s duty to accommodate may include shifting an employee’s role so vaccination is not necessary, allowing remote work, implementing a work from home policy, or introducing more stringent physical distancing and masking policies for in-office employees who are not immunized.
What should Employers consider before implementing mandatory COVID-19 vaccine policies?
Where a mandatory vaccination policy is concerned, employers should consider employee safety, workplace safety, and public safety. Any such policy implemented by an employer should take into consideration multiple factors and a court will look at the workplace as a whole to determine whether a mandatory policy is warranted.
Employment Agreements: While the pandemic has created a lot of unknowns, a well-written employment agreement will have proper termination and policy clauses built into it to protect both employers and employees. Employers should review all employment agreements to see how these types of issues are dealt with.
Human Rights Issues: If an employee’s vaccine-related wishes are protected under the Human Rights Act of Alberta, the employer has a duty to accommodate to the point of undue hardship. Employers must be able to show they have done everything possible to accommodate before termination or they may be in violation of the Human Rights Act.
Reasonableness: The employer needs to consider whether a mandatory COVID-19 vaccination policy is reasonably necessary for those subject to it. For example, working from home or masking and physical distancing may suffice – especially in areas where the spread of the virus is low, creating lower general risk.
What if my Employee refuses to be vaccinated?
But what can an employer do if an employee refuses to be vaccinated? First, we recommend the employer attempt to have a reasonable conversation with the Employee and find out why they are refusing. Do they have a medical reason? If so, ask them to get a note from the Doctor that states that the employee should not receive the vaccine due to medical concerns. Do not ask the employee for a diagnosis. Employers do not need to know that specific information in this case.
As long as your employees are not unionized, employers have the right to terminate employment without cause for any reason at any time, provided the reason is not discriminatory. Refusal to be vaccinated for a valid reason likely won’t ever be grounds for a just cause dismissal, however. As long as the requirement or any policy related to vaccination doesn’t infringe on any human rights protection owed to the employee, the requirement itself is not discriminatory. Requiring an employee to be vaccinated when they have a good reason not to be – for example, they are immunocompromised and it is not recommended by their doctor – would likely be a human rights violation. An employee in that case, could be terminated without cause for refusing or delaying in being vaccinated, but they will still be owed statutory termination pay or perhaps common law severance in that case. They may also have a claim to the Human Rights Commission depending on the specific facts of each case.
Is refusing to be vaccinated just cause for dismissal?
Not generally. The bar for employers to prove that a termination was with cause is set at a high standard. And even if vaccination is a condition of employment under the employment contract, an employee refusing to comply with this condition will not necessarily be grounds for a with cause termination. An employee terminated for not getting the vaccine will in most cases still be entitled to notice of termination.
Can an Employer ask for proof of vaccination from Employees?
An employer can likely require that employees provide this information, like all employee health information, it should be carefully stored confidentially and used only for its intended purpose. There are privacy considerations in requiring proof of vaccination and the use of that information. The employer’s handling of the personal medical information that forms the proof or lack of regarding an employee’s vaccination status must be guided by the narrow purpose of conducting the employment relationship.
Overall, an employer can create a workplace policy that requires employees to get vaccinated. We strongly encourage employers to seek legal advice prior to implementing any broad vaccination policy as there are many issues to consider and each workplace and its workforce is different. Providing employees with access to detailed medical scientific-based information regarding the importance of
vaccinations as well as explaining the effects of what could occur from an economic perspective at work should they not get immunized, might be the push an employee needs to make this decision.
These crazy times are continually evolving for employees and employers and the legislation and rules related to employment in Alberta can be confusing. Please contact me to discuss your employment needs and we can definitely sort it out.
