Written on behalf of Peter McSherry
In recent weeks, Ontario and other provinces in Canada have experienced a sharp increase in the rate of COVID-19 infections. With more regions in the province entering a second lockdown period, promising news on the fight against the coronavirus infection is welcome. While still in the very early stages, Canada has begun to administer COVID-19 vaccinations on a priority basis to people across the country. Among those who will be the first in line to get the vaccine are:
- Residents and staff of senior living facilities.
- Adults 70 years of age and older, with order of priority:
- beginning with adults 80 years of age and older
- decreasing the age limit by 5-year increments to age 70 years as supply becomes available
- Health care workers who have direct contact with patients, including:
- those who work in health care settings
- personal support workers
- Adults in Indigenous communities.
Following the groups above will be other health care workers not in the first group, other staff and residents of shared living facilities, and essential workers. From there, the vaccines will be offered to the general public on a broader scale. While many Canadians are looking ahead to the vaccine with anticipation, there are also those who have expressed a reluctance to participate for one reason or another. The government has made it clear there is no plan at this time to make the vaccine program mandatory, with British Columbia Health Officer Bonnie Henry saying:
We have no mandatory immunization programs in this country and in this province, and we do not expect COVID immunization will be mandatory either. We will be strongly encouraging everybody in [hospitals and long-term care facilities] to be immunized, and if people are thinking of going into those settings and don’t believe in immunization, then they should look for other things to do.
In Alberta, the Premier has gone so far as to say he will look into removing any possibility that the vaccine could become a mandated practice.
Can Workplaces Mandate the Vaccine or Terminate Employees Who Opt Out?
Despite the positions stated above, some are wondering if their employers might require they become vaccinated, once the program is available on a widespread basis, in order to return to work. The short answer is that this is unlikely. While we are in an unprecedented situation, it is likely that the strongest position an employer could or would take on the matter would be to encourage staff to become vaccinated once the option becomes available. While the CTV article linked above considers that employees working in close-contact situations with members of the public, such as restaurant workers or airline employees, would be the most likely groups to face such a requirement, it would be unlikely an employer could terminate employment over a worker’s refusal to vaccinate.
Human Rights Protections
Under provincial human rights legislation, employees are protected from discrimination based on certain grounds, including religious beliefs and disability. If an employee were to refuse vaccination due to their faith, or a potential medical reaction, it is very likely they would be protected from discriminatory treatment at work on this basis.
All that being said, employers have a fine line to walk, considering they also have a duty to provide a safe workplace for their staff. Given that responsibility, employees who refused vaccination may need an accommodation such as the ability to work at home (in situations that allow for such arrangements), or they may need to be placed on a job-protected leave until the pandemic is under control in order to protect others in the workplace.
The situation is still unfolding as new developments arise, and some of these issues have yet to be determined definitively. Our firm will continue to closely monitor the COVID-19 situation as it affects various issues in employment law and will provide updates as they become available.
If you are an employee concerned about safety in the workplace, or an employer looking to ensure you stay compliant with new regulations as they roll out, contact the offices of Guelph employment lawyer Peter McSherry. We regularly assist employees with employment and labour issues. Contact us online or by phone at 519-821-5465 to schedule a consultation.