As COVID-19 vaccines are starting to roll out across Ontario, there have been important discussions around “vaccination passports” and limitations on where non-vaccinated individuals are able to go.
Many employers are wondering whether they can prevent non-vaccinated employees from entering the workplace and whether they ought to implement mandatory vaccination policies. The logic to requiring all employees to be vaccinated against COVID-19 may seem obvious at first glance: In order to slow the spread and eventually end the pandemic, it stands to reason that the more people vaccinated, the better.
Unfortunately, the reality is not so simple. Ontario law currently has no existing case law or legislation that directly addresses this question. Provinces have the power to order mandatory vaccination, but Ontario has not indicated that it will do so, and this leaves employers uncertain as to what they can require of their employees.
Existing Law on Mandatory Vaccination
Ontario does have legislation requiring vaccinations of employees in specific circumstances. For example, regulations under the Long-Term Care Homes Act require a “staff immunization program” in accordance with evidence-based practices or prevailing practice. Likewise, under the regulations of the Child Care and Early Years Act, employees of a childcare centre must be immunized in accordance with their local public health guidelines (the list usually includes polio, measles, and other serious diseases). However, long-term care homes and childcare centres are workplaces centred on caring for the elderly or young children, both vulnerable populations that have historically been two of the most at-risk for communicable diseases.
Labour arbitrators have considered similar issues in the past, particularly around the flu vaccine. There are several Ontario cases involving hospital policies requiring employees to receive the flu vaccine or wear a mask if not vaccinated. In those cases, the employer’s policy was determined to be unreasonable, on the basis that there was a) no scientific evidence in favour of masks preventing transmission of the flu; b) there was little evidence of asymptomatic transmission of the flu; and c) the vaccine was not even close to 100% effective when administered. (To date, there has been no similar discussion of mandatory vaccination policies in non-unionized workplaces.)
Applying Similar Principles to COVID-19
In light of what we know about COVID-19 and the COVID-19 vaccines, the objections of the arbitrators in the decisions above would not carry much weight. At this point in time, we know that COVID-19 vaccines are up to 95% effective and that masks are crucial in preventing the spread of the virus. Furthermore, we know that COVID-19 is far more severe than the flu and the risk of death is much higher, particularly in vulnerable populations.
These facts suggest that a mandatory COVID-19 vaccination policy is more likely to be upheld as reasonable, particularly in a workplace where working with or protecting an at-risk population is central to the business. However, this will continue to be uncertain so long as there are no court or arbitration decisions specifically on point.
Considerations When Implementing a Policy
As there is not yet much guidance from Ontario law, employers must make informed decisions — ideally with the benefit of legal advice — as to whether a mandatory vaccination policy is justified. In order to assess a proposed policy, employers must weigh an employee’s human rights and privacy with the safety risks to the workplace. Requiring an employee to receive a vaccination is, in essence, asking that they undergo a medical procedure and is therefore highly invasive.
Employers considering a mandatory vaccination policy should take into account the following before rushing ahead:
- The realistic safety risks posed by COVID-19 to the workplace;
- Employees’ religious beliefs that may prohibit vaccination in some form (existing immunization requirements typically have exemptions for these individuals);
- Privacy implications in requiring an employee to disclose whether or not they have been vaccinated and why;
- Why alternatives such as mask-wearing and physical distancing are not sufficient; and
- Discipline and consequences for employees who fail to comply and how to clearly communicate these to employees.
Employers will also need to be aware of the need for accommodation if an employee cannot be vaccinated, as well as the possible liability for human rights claims or claims arising from reactions to the vaccine. Alternatively, employers have a duty under the Occupational Health and Safety Act to take every reasonable precaution to provide a safe workplace. Furthermore, employers ought to consider potential liability arising from the failure to have its employees vaccinated and the potential impacts on clients, patients, or other employees if COVID-19 is transmitted within the workplace (or beyond it).
Finally, employers should always consult with legal counsel before implementing any mandatory policy, as each workplace is unique and the principles set out above will apply differently in every situation.
Note: The information provided here is current as of the date of publication, but the law related to COVID-19 is changing quickly and daily. If you have any questions, please consult with an employment lawyer at SV Law.
 See, e.g. Sault Area Hospital and Ontario Nurses’ Association, 2015 CanLII 55643 (ON LA); St. Michael’s Hospital v Ontario Nurses’ Association, 2018 CanLII 82519 (ON LA).
The content of this article is intended to provide a general guide to the subject matter and is not legal advice. Specialist advice should be sought regarding your specific circumstance.