Can the business force COVID 19 vaccination on employees?
There is a lot of information flowing from different sources. Please select your sources carefully and consult with licensed professionals with knowledge and experience in this area. The following information is not legal advice. It is general information. If you are about to make decisions or take steps related to this topic, consult an employment lawyer before you do.
I understand that some banks, airlines, and government levels have decided to order their employees to get vaccinated or be subject to disciplinary actions, up to and including termination.
Businesses have two choices, none of which is free from consequences:
1. Mandatory vaccination policy; or
2. Discretionary vaccination policy (or keep silent).
Employers are reasonably concerned about this decision. Would they get the business in trouble if they have a mandatory vaccination policy? Would they get the business in trouble if they have a discretionary vaccination policy, or keep silent? Employers are between a rock and a hard place.
If the business has a discretionary vaccination policy, it is exposed to government shutdowns, WSIB/group insurance’s applications, and potential class actions, or individual lawsuits due to failure to fulfill its duty of care.
If the business has a mandatory vaccination policy, it is exposed to an individual's claims of discrimination, constructive dismissal and/or harassment.
Occupational health and safety laws and duty of care of their employees instruct employers to take reasonable steps to provide their employees with a healthy and safe work environment. For COVID-19, it may mean that the employer has to order employees to get vaccinated.
Human rights laws instruct employers not to discipline or lay off employees using human rights grounds to justify those decisions, and to accommodate employees. For employers with a mandatory vaccination policy may mean that they need to accommodate an employee’s disability or religion up to the point of undue hardship.
A business would eventually find itself defending its mandatory vaccination policy or its discretionary vaccination policy before the Ministry of Labour, the Human Rights Tribunal of Ontario, WSIB and/or Courts. Employees who are vaccinated will scrutinize the business decision not to order the non-vaccinated employees to get vaccinated. Employees who are not vaccinated will scrutinize the business decision to order all employees to get vaccinated.
There are several formulas to consider and legal tests to go through. I encourage businesses to spend resources to choose the risk they want to face and design a plan to tackle it. There is no magic bullet.
Antonio F. Urdaneta is an employment, labour and workplace human rights lawyer in Ontario. You can contact him through this website.