Employee vaccine mandates? Not so fast

Gilbert Sharpe

Margot Mary Davis

With concerns about a fourth wave, many Ontario employers have implemented mandatory vaccination policies for their employees. A recent poll conducted by KPMG found that 62 per cent of employers planned to implement such policies. Since about three-quarters of eligible Ontarians are fully vaccinated, the vast majority of them will simply provide proof of vaccination to their employer. Additionally, the Occupational Health and Safety Act requires employers to keep their employees safe and COVID-mitigation strategies are part of ensuring a safe workplace. 

While many employers have mandated such policies, they are currently not legally required to do so. Currently, Ontario does not have any statute or regulation mandating COVID-19 vaccines for all employees.

Certain regulations do require certain vaccinations for some professions. O Reg 257/00 made under the Ambulance Act mandates immunization for emergency medical attendants and paramedics, either employees or volunteers, in a land ambulance service. For O Reg 257/00, one finds the mandatory vaccines in the Ambulance Service Communicable Disease Standards and they include, among other diseases, immunizations against diphtheria, measles and mumps. COVID-19 is not mentioned. O Reg 137/15, under the Child Care and Early Years Act, 2014, requires immunization for licensees of child care centres and home child care agencies. According to O Reg 137/15, one must have immunizations as “directed by the local medical officer of health.” Only if a Ministry of Health mandated a COVID-19 vaccine, would it be necessary.

Recently, the chief medical officer of health issued Directive 6 pursuant to s. 77.7 of the Health Protection and Promotion Act. This directive required public hospitals, home care service providers and community care service providers to have a COVID-19 vaccination policy for employees, volunteers, contractors, staff and students. Additionally, ambulance services must have a COVID-19 vaccination policy for paramedics.  A similar policy will soon be in effect for post-secondary institutions and shelters. At the same time, many employers are excluded from this directive.

Relatedly, arbitrators have not always upheld mandatory vaccination policies. In Trillium Ridge Retirement Home v. Service Employees Union, Local 183 (Vaccination Grievance) [1998] O.L.A.A. No. 1046, the arbitrator upheld a policy that required employees to be vaccinated or take antiviral medication because evidence showed that such behaviours significantly reduced the transmission of the flu. In contrast, arbitrator William Kaplan ordered St. Michael’s Hospital to rescind its “Vaccinate or Mask” policy because the evidence supporting VOMs’ effectiveness at stopping transmission of the flu was “insufficient” (St. Michael's Hospital v. Ontario Nurses’ Assn. (Vaccinate or Mask Policy Grievance) [2018] O.L.A.A. No. 292). These decisions were made prior to COVID-19.

A sizable minority of Ontarians have not been vaccinated and will not get vaccinated. They are also employees and have rights. An employer, in a private business, who fires an unvaccinated employee might place themselves at risk of various legal claims. Below, we discuss such claims and provide potential workplace policies that fight the spread of COVID-19 and protect the rights of unvaccinated employees.

Employment-related actions  

If an employer fires a non-unionized employee for being unvaccinated, it would be termination without cause. Termination for cause is reserved for the most egregious behaviour and non-vaccination status would not fall under this area. If one fires an employee without cause, they are responsible for both severance and termination pay. Additionally, an employee could sue for wrongful dismissal. Currently, no precedent exists on this particular topic.

Some unvaccinated employees might make particular claims or applications. An unvaccinated employee, who was an employee prior to the vaccination policy and who leaves because of the policy, could make a claim of constructive dismissal. Constructive dismissal occurs when “… an employer makes a unilateral and fundamental change to a term or condition of an employment contract … without providing reasonable notice of that change to the employee. Such action amounts to a repudiation of the contract of employment by the employer whether or not he intended to continue the employment relationship” (Farber v. Royal Trust Co. [1997] 1 S.C.R. 846).

The claim would probably not be successful but an unvaccinated employee is within their rights to bring it.

Employees might belong to faiths that oppose vaccination. Christian Scientists and the Dutch Reformed Church have often eschewed vaccinations. An employee could bring an application under the Human Rights Code saying that the vaccination mandate violates their right to “equal treatment with respect to employment.” Employers have a “duty to accommodate” until the point of “undue hardship.” Accommodation might include an alternative to vaccination.

Privacy

Another area of concern involves compelling the disclosure of personal information. While sharing of information amongst health-care professionals in the circle of care of treatment is authorized under health privacy laws, requiring information, such as vaccination status, could present regulatory issues.

Consent

In addition, there is the matter of consent. For consent to be valid, it must be informed, the product of a mentally competent individual and it may not be given as a result of coercion or duress. As there is no specific legislation or regulation requiring such disclosure, it is arguable that the coercion involved in mandating disclosure and mandating vaccination nullifies the individual’s consent in both instances.

Solution

Employers want to fight the spread of COVID-19, comply with OHSA and not be at risk of employee claims. What is the solution?

Employers should require unvaccinated employees to undergo rapid COVID-19 testing whenever entering the premises and to wear masks. In Caressant Care Nursing & Retirement Homes v. Christian Labour Assn. of Canada (Covid Testing Grievance) [2020] O.L.A.A. No. 342,  the arbitrator upheld a mandatory COVID-19 testing policy as “reasonable.” These policies should be in addition to general COVID-19 mitigation strategies like contact tracing and frequent hand washing. All employees, whether vaccinated or unvaccinated, must inform the employer if they test positive for COVID-19 and stay home for two weeks (Garda Security Screening Inc. v. IAM, District 140 (Shoker Grievance) [2020] O.L.A.A. No. 162). 

While not mandatory, employer policies could encourage unvaccinated employees who have had COVID-19 to provide a COVID-19 antibody test. Research from Yale’s Iwasaki Lab showed that antibodies could protect against future COVID-19 infections.

Some might argue that courts and arbitrators have not always upheld “VOM” policies in the past (St. Michael’s v. ONA, supra note 5). Those decisions pertained to other transmissible diseases where masks are less effective at preventing transmission. In contrast, masks play a large role in preventing transmission of COVID-19.

Conclusion

Employer policies, legally and morally, need to protect against the spread of COVID-19. At the same time, employers need to recognize that unvaccinated employees have actions available to them. With no statute or regulation mandating vaccination, a COVID-19 mitigation policy, like ours, is the best solution.

As the former legal director for the Ontario Ministry of Health, Gilbert Sharpe has had a strong impact on health law in Ontario. He has authored numerous health-related statutes on topics ranging from mental health to independent health facilities. Having advised organizations like the World Bank on international health projects, his impact on health-care policy extends beyond Ontario. An advocate of continuous learning, he has written for numerous publications and has taught at the University of Toronto. For the last 18 months, he served as special adviser to the provincial government. For any health-care policy needs, please feel free to contact him at gsharpeca@icloud.com. Margot Davis is a lawyer proficient in several areas of law and has a great interest in health law and health policy. Margot has numerous publications and freelances as an editor.

Photo credit / danijelala 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.