What you need to know about vaccine mandates in the workplace

Ontario’s proof of COVID-19 vaccination requirements will be lifted on March 1, but private businesses do not have to follow suit.

Many are worried that their employers will institute vaccine mandates at their workplaces, leaving them with no choice but to comply or quit. Concerns have also been raised about such policies being akin to forced vaccination and a violation of rights.

Can employers enforce a vaccination mandate at work?

The short answer is yes.

Private employers can institute a vaccination policy at work and such rules do not violate the Charter of Rights and Freedoms, as is often mistakenly cited.

“The Charter only applies to governments and government agencies. So if you’re a government employer, then the Charter might protect employees,” explains Sophia Moreau, professor of law and philosophy at University of Toronto. “But if we’re just talking about an ordinary, private employer and employees, the charter isn’t a source of your rights.”

In that context, an employee’s rights are protected under the Ontario Human Rights Code and employers must formulate their policies in adherence to it. The province’s Human Rights Commission came out with a position statement on mandatory vaccination policies last September that stated it is generally permissible to require employees to be vaccinated if employers “reasonably accommodate” those who cannot get vaccinated for two reasons: religious or medical.

Religious reasons

Prof. Moreau explains that as per the Human Rights Code, religious beliefs that stem from organized, recognized religion are protected. However, personal preferences or “singular beliefs” are not.

“I might have a very sincere personal conviction that a vaccine violates my freedom or that it’s a bad thing for me and my family to be vaccinated. But unless I can show that this is actually part of a recognized religion, I don’t get an exemption under the Human Rights Code,” she said.

Medical reasons

In order to get a recognized exemption under the human rights code, an employee would have to have a documented medical condition and a doctor or nurse’s note would be required to support their inability to take the vaccine.

“We know there are some people who, for a variety of reasons, it would be deleterious to their health to risk a vaccine, and that’s the kind of thing that can get you a doctor’s note. But mere discomfort at the idea of vaccination cannot,” said Moreau.

Union vs. non-union employees

Moreau makes a distinction between unionized employees and those who are not part of a union and notes that the concept of “reasonableness” becomes important in both cases, although it may apply differently to each.

Non-union employees

Moreau says in the case of non-union employees, much depends on the individual contracts with the employer.

“If an employer has never told employees that they would have to be vaccinated or otherwise risk losing their job, there is a potential that the employer would be breaching the contract [by suddenly saying] now you have to be vaccinated,” she said.

However, she adds that all contracts are interpreted on the basis of what is considered “reasonable” and legal authority would likely consider employers requiring vaccination during a worldwide pandemic to be justifiable.

“During this pandemic, in a province where we’ve had vaccine mandates for some time, it’s quite likely that when we interpret the contract, we just think it’s reasonable to expect that in this sort of situation, an employer might impose a vaccination mandate,” she said.

Union employees

If employees are part of a union, they have a collective agreement in place with the employer.

Moreau explains, however, that collective agreements cannot account for all circumstances.

“So the assumption as a part of labour law is that the employer retains the right to manage the workplace in a reasonable way — so we try and balance the risk to public health with the needs of the employees,” she said.

Moreau opines that it is possible that we may reach a point in the pandemic where the risk of having someone who is unvaccinated in the workplace becomes so small, that it might seem unreasonable to require vaccinations. Or perhaps a vaccine-resistant variant may emerge that renders a vaccine mandate useless.

“But based on what we know so far and based on the variants, I think it’s likely that such mandates will be deemed reasonable,” even in a unionized workplace, she said.

Alternate arrangements

Moreau points out that when it comes to an employee’s rights, whether in a union or not, it is important to factor in accommodations such as working from home.

“Increasingly we’re starting to see cases come through the court system or decisions of labour arbitrators … that have come out suggesting that if it’s possible for workers to do their jobs remotely, then this more dramatic ‘get vaccinated or you’re fired policy’ is not reasonable and employers do have to accommodate unvaccinated employees.”

She adds that alternatives like a brief sabbatical could also be considered with an understanding that the employee’s position will be kept in place until such time as the employer can drop the vaccine mandate.

Creating equitable workplace vaccine policies

If an employer chooses to frame a vaccine policy for their workplace, Human Resources expert Janet Candido says it is essential that they remain accommodating and adaptable.

“The issue as we’ve seen is very divisive and you’re either on one side or the other,” said Candido. “So employers have to be very flexible about how they approached any policy around this to their employees.”

Provide options and have good reasons

Candido suggests employers should offer three basic options to their employees:

• Get vaccinated and attend the office/workplace to work in-person
• If unvaccinated and attending the office/workplace, agree to COVID-19 testing at least twice a week
• If able to work effectively from home, do not go into the office/workplace and work remotely, whether vaccinated/unvaccinated

She adds that working from home may not be the best solution long-term for some employers and in that case, they could consider a hybrid solution to help employees ease back into the routine — where people work from home for some part of the week and attend in-person for the rest of the week, working towards returning to in-person work full time.

“For two years, we’ve been hearing about the transmission of this and how dangerous it is and how easily transmitted it is. We can’t expect people to suddenly, come Monday, be prepared to all be in the same room together,” said Candido.

Candido says there are many benefits to having all employees in the office like being able to “access the collective brain of the people in the office, which you don’t have the same access to when you’re working remotely.”

“Anything that is improved by collaboration is best in person,” she added.

However, if an employer insists on having employees work in person, Candido says they should be able to back it up with some solid reasoning.

“Be prepared to answer the question ‘why?’ Why do you need me to come back to the office? What was not happening before that will be improved by my being in the office?” she said. “You really need to think through — do you need people to come back to the office and if so, what does that look like?”

Day-to-day management

Candido says while policy-making is tricky to navigate, it’s also important to be just as cognizant and careful when managing day-to-day workings once the vaccine policy is in place.

She cautions against unwittingly creating an ‘us versus them’ environment among employees based on who is vaccinated or unvaccinated and who chooses to come to the office as opposed to those who work from home.

“You have to be careful .. that you’re not pitting one group of employees against the other,” by treating them differently, she said.

In addition, Candido says to guard against the “out of sight, out of mind” mentality.

“It’s easy to fall into a trap of … inadvertently favouring the employees you can see, the ones that are there in front of you, at the expense of the ones that are working from home,” she said.

Most importantly, Candido says employers should focus on the work that is required from the employees and leave aside anything that is extraneous to that.

“It is not your place to convince them to get a vaccine or to not get a vaccine. It’s your place to make sure you’re accommodating their personal decisions in how the work gets done.”