By Laura Williams, LLB, CSP
This past year many Canadian employers, whether by legal mandate or good practice, have implemented vaccination requirements in their workplace, and the Omicron variant has re-affirmed for many the appeal for these policies. While vaccination policies are becoming commonplace, we have yet to see what many expect to be a tsunami of vaccination policy-related lawsuits. There are a few essential considerations for employers regarding workplace vaccination requirements and legal exposures that are often being overlooked.
COVID-19 Vaccination Policies
Employers cannot compel employees to be vaccinated against their will. However, employers can encourage vaccination (including booster requirements) and create policies under which employees who are not vaccinated are subject to certain work-related consequences which could include termination of employment or lesser requirements such as enhanced health and safety measures.
Employers are now increasingly wanting employees to obtain booster shots to ensure the workplace is adequately protected from developing variants of COVID-19. Employers are permitted to require employees to get boosters as they become available. Ideally, employers should reserve the right to require boosters in their vaccination policies.
Employers must be aware that mandatory policies that provide for termination of employment for unvaccinated employees will in most cases trigger employee termination entitlements. The cost to employers will vary depending on whether there is an enforceable employment agreement with a termination clause. Where no such provision exists, employees could be entitled to up to 24 months or more in compensation depending on their age, years of service and the availability of work. As such, the potential cost must be considered before proceeding with an “all or nothing” type policy.
Mandatory vaccination policies in many cases amount to a substantial unilateral change to the terms of the employment, which can trigger what is known as constructive dismissal. An employee who has been constructively dismissed is entitled to treat their employment as having come to an end and bring a legal action against the employer for their termination entitlements.
Constructive dismissal risks for employers will depend on the workplace and job in question. In work environments where employers can demonstrate that health and safety is a central, pre-existing concern (such as long-term care, or childcare), there will be a more compelling defence to claims of constructive dismissal.
The risk is also dependent upon the repercussions for noncompliance. Workplace vaccination policies often impose specific measures for unvaccinated employees such as testing requirements, work mobility restrictions, or even placing employees on an unpaid leave of absence. The more stringent repercussions are more likely to attract constructive dismissal risks particularly where they significantly alter working conditions.
Generally constructive dismissal does not apply to unionized workplaces, however in these environments vaccination policies can be grieved by the union and challenged on the basis that they violate the employer’s obligations under the collective agreement. As such, it is crucial when working with a unionized workforce to review the applicable collective agreement to determine if there are any procedural steps or impediments to implementing vaccination requirements.
Another major vaccination consideration is human rights legislation. Over the past year, employee requests for accommodation based on disability, creed or religion have skyrocketed. Vaccination policies must leave room to accommodate employers where required under human rights legislation. In exceptional circumstances, accommodation may not be possible where the accommodation would constitute an unreasonable safety risk in the workplace and the employee’s work duties cannot be adjusted to mitigate that risk. However, in many cases employers will be required to accommodate exemption requirements where an employee has a legitimate disability or religion-based basis for the exemption. Each request for accommodation must be assessed on its own merits. Employers that fail to accommodate where required can face discrimination claims, substantial human rights liability, and reputational harm.
Adverse side-effects experienced by employees in response to mandatory vaccination requirements can be compensable under workers compensation in certain provinces or even through legal actions for personal injury for where the employer does not have workers compensation coverage. However, employers will want to weigh this risk with the potential for liability from employees and third parties who are at greater risk of contracting the virus absent a mandatory policy, as well as preferences of clients and stakeholders that may require vaccination.
Vaccination policies should clearly indicate how the employer will protect employee vaccination information, and consider any applicable legal privacy requirements. Although privacy laws vary among Canadian jurisdictions, employers can generally only collect employees’ medical information where reasonably necessary for a work-related purpose. In any event, vaccination policies should stipulate the information the employer will collect, the purpose for its collection, how it will be used, and how it will be protected.
While the rapidly developing nature of the pandemic creates shifting risks and potential for lawsuits from objecting employees, a proper calibration of these considerations in workplace policies will be beneficial to employers in limiting fallout from staff and avoiding foreseeable liability.
Managing Partner, Williams HR Law LLP
President and CEO, Williams HR Consulting Inc.
Laura has built two highly respected firms which provide proactive HR law and HR consulting advice designed to minimize workplace law challenges, maximize employee engagement and boost bottom line performance.
Laura is also a seasoned workplace investigator, routinely engaged to conduct complex workplace investigations, and organizational reviews and is recognized for specific expertise in investigations related to equity, diversity and inclusion.
As a professional speaker, Laura regularly delivers keynote talks on topics relevant to entrepreneurs, business leaders, HR professionals and lawyers. Laura has recently launched a podcast for business leaders and HR Professionals called, We Thrive Forward – Conversations with Laura Williams which is available on all major platforms.