What's the Law In Ontario Regarding Vaccination?
Covid-19 vaccines are not risk-free. Many have showed very serious complications and side-effects after getting Covid-19 vaccination. Furthermore, several faiths, e.g. Jovah's Witness, prohibit their followers from causing damage to their bodies, which includes, among other things, blood transfusion, vaccination and immunization. If so, can my employer punish me for NOT getting vaccinated?
Mandatory Vaccination in An Unionized Workplace
Currently there's no legislation or case law on point. However, mandatory vaccination in the workplace is not a new issue in unionized healthcare environments. Thus, we can gain some insights from these mandatory vaccination cases. See e.g. Trillium Ridge Retirement Home v. SEIU., Local 183, [1998] OLAA. No. 1046 (Emrich).
In these cases, the employer implemented a workplace policy requiring staff to stay home without pay if they were not vaccinated for influenza or refused to take anti-viral medication during an influenza “outbreak” in the workplace.
Among other reasons, arbitrators held such polices were reasonable because:
The policy did not force staff to get vaccinated.
Staff had a choice to either get the influenza vaccine or undergo anti-viral treatment during an influenza outbreak, or stay home without pay.
Staff were not fired if they refused the vaccine or treatment;
the policy was limited to only when there was a declared influenza outbreak within the workplace as defined by the policy, and did not apply throughout the entire flu season;
the policy achieved its goal of protecting vulnerable elderly patients who were highly suspectable to serious harm from influenza; and
there was strong evidence that the vaccine and anti-viral treatment provided some protection against flu transmission.
However, it is important to note that these involved unionized workplaces, and one factor arbitrators considered in upholding mandatory influenza vaccine policies was whether the policies were consistent with the collective bargaining agreement between the employers and their unions. No such agreements exist in the non-unionized context. Further, these cases only dealt with influenza and DID NOT address the seriousness of a global pandemic such as COVID-19.
Mandatory Vaccination in An Non-Unionized Workplace - A Loaded Question
Unfortunately, there's no case law on point in the COVID-19 context regarding vaccination in Non-Unionized workplaces.
But we know that COVID-19 is highly infectious and deadlier than influenza. More importantly, most COVID-19 vaccines are effective in preventing severe disease and hospitalization, and in reducing community spread. Besides, Ontario employers are bound by section 25(2)(h) of the Occupational Health and Safety Act (OSHA) and must take every precaution reasonable in the circumstances to protect the health and safety of its employees.
On the other hand, employers must keep in mind that some employees may refuse a COVID-19 vaccine for medical or religious reasons, where mandatory vaccination can be viewed as a form of disability or religious discrimination prohibited by the Ontario Human Rights Act.
It's delicate balance between legitimate public interests versus individual rights guaranteed by the Ontario Human Rights Act.
Legality of a Mandatory Vaccination Policy
The reasonableness of the vaccination requirement will depend on each unique workplace. Employers wanting to require vaccinations should consider the following:
A) The nature of the workplace
Some workplaces may be large enough such that preventive measures such as physical distancing, wearing masks, and frequent handwashing will provide sufficient protection from COVID-19.
Mandatory vaccination may be justified for workplaces where physical distancing among employees is impossible (e.g., in construction or on production lines), or workplaces frequented by vulnerable people (e.g., healthcare settings), or in workplaces where employees often interact directly with members of the public (e.g., restaurant, and culinary businesses).
B) The availability of the COVID-19 vaccine & Privacy Considerations
If the vaccine is not readily available to all employees, then it will be unreasonable to make vaccination a requirement to work. However, as vaccine starts to become widely accessible, vaccine accessibility could quickly becomes a non-issue for Covid vaccination.
In any case, employers shouldn't disclose the vaccination status of their employees to their fellow employees, unless absolutely necessary for health and safety reasons or you may inadvertently violate privacy laws. such as Freedom of Information and Protection of Privacy Act. For instance, if you have a policy that no worker is permitted to enter the workplace unless they have been vaccinated, there is no reason why you should reveal to their coworkers the reasons why certain employees are not turning up to work.
C ) Human Rights Accommodations
There are very few mandatory vaccination cases that are on point in related to disability and religious based workplace discrimination.
Do note that there's at least one case where an applicant who filed a claim to Human Rights Tribunal of Ontario (HRTO) for mandatory vaccination was dismissed for lack of evidence. See e.g. Ataellahi v. Lambton County (EMS), 2011 HRTO 1758 (CanLII).
In Ataellahi, the applicant, a paramedic alleged his employer’s refusal to schedule him for work during the winter 2010-2011 influenza outbreaks because he was not vaccinated against influenza discriminated against him. The applicant didn't provide any evidence or any expert witness as to how his religion forbids him from getting vaccinated.
In Ataellahi, HRTO has adopted the Supreme Court of Canada’s test in Syndicat Northcrest v. Amselem 2004 SCC 47, finding that religious beliefs are those that have “a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith” and in "the absence of any religious beliefs and/or practices influencing his decision to not be immunized, the applicant cannot assert that he is being discriminated against on the basis of his creed", and thus the case was dismissed.
D) Bona Fide Occupational Requirement
A Bona Fide Occupational Requirement, or BFOR, is a standard or criteria that allows an employer to “discriminate” based on an otherwise prohibited ground, if there is a legitimate reason that is connected to the ability to do the job.
In British Columbia (Public Service Employee Relations Commission) v British Columbia Government Service Employees' Union, 1999 CanLII 652 (SCC), the Supreme Court has created a unified test to determine if a violation of human rights legislation can be justified as a BFOR.
Under the Meiorin test, an employer can justify the impugned standard by establishing on the balance of probabilities:
that the employer adopted the standard for a purpose rationally connected to the performance of the job;
that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
that the standard was reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
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To survive the Meiorin test, a vaccination policy should contain exceptions for employees who refuse vaccination for valid medical or religious reasons, and provide them with reasonable accommodations. Possible forms of accommodation may include allowing unvaccinated employees to continue working remotely from home; requiring employees to complete COVID-19 assessments before entering the workplace and at the same time maintaining appropriate physical distancing; and wearing appropriate personal protective equipment such as a mask.
E) Penalties for Non-compliance
In Barkley v. Mohawk Council of Akwesasne, [2000] C.L.A.D. No. 553 (QL) (federal), the employer of a federally regulated adult care facility with frail and elderly patients created a policy through which influenza vaccination was a requirement for continued employment, and staff who refused to comply for non-medical reasons would be dismissed. The employee refused to get vaccinated because she asserted she never got the flu and was dismissed for cause.
The arbitrator upheld the employer’s policy and the employee’s dismissal because there was sufficient evidence that the flu posed a serious risk to residents with whom the employee had frequent contact. The arbitrator found the employer had a legitimate interest in protecting the health of residents and the imposition of a mandatory vaccination policy as a condition of continued employment was reasonable.
While this case dealt with unjust dismissal application under the Canada Labour Code, an Ontario judge or employment standards officer may find the decision persuasive, especially in workplaces that provide direct health care, especially to persons vulnerable to COVID-19.
Less clear is whether summary dismissal will be justified in workplaces in which working remotely or physical distancing in the workplace is possible. Given this uncertainty, employers should implement a mandatory vaccination policy that is more lenient. For example, employers might place a non-compliant employee on an unpaid leave until they comply with the policy. Employers might also dismiss an employee on a without cause basis, by giving a non-compliant employee working notice or compensation in lieu thereof.
Vaccination requirements in the workplace will grow more controversial. However, it is still uncharted water until there are more legislation and cases on point in the Covid-19 vaccination scenario. Employers should adopt a lenient approach to mandating COVID-19 immunization by instituting a flexible penalty system and allowing certain exceptions to their vaccination policies to accommodate workers who have legitimate medical or religious reasons for refusing to get vaccinated.
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