No legal grounds for employers to force employees to get vaccinated, say experts
TORONTO -- As a potential COVID-19 vaccine gets closer to reality in Canada, so does the reality that as employees who have been working remotely return to their workplaces, there are uncharted legal and ethical waters ahead.
Among the issues to be navigated: Could employers force staff to get vaccinated?
There is no legal precedent for that, say employment lawyers.
“What employers would like employees to do is quite a bit different, though, than what they can require employees to do,” Amy Frankel of Forte Law in Langley, B.C. told CTV Vancouver.
Frankel says given current principles and the state of Canadian law, “it’s safe to say employers probably at this point cannot mandate vaccinations as a condition of their employment.”
“(A)n employer will not be permitted to make a COVID-19 vaccine mandatory as a condition of employment,” Brock Ouellet, an employment lawyer with Samfiru Tumarkin in Ottawa, wrote in a blog.
“Although mandatory vaccination would not be permitted, many employers could strongly suggest that their employees get vaccinated for COVID-19, to decrease the spread of COVID-19 in the workplace.”
Governments and public health officials at the federal and provincial levels have said the COVID-19 vaccine will be voluntary.
“We have no mandatory immunization programs in this country and in this province, and we do not expect COVID immunization will be mandatory either,” said B.C. provincial health officer Dr. Bonnie Henry during a news conference Wednesday.
That’s true even at high-risk workplaces like hospitals and long-term care facilities, Henry said.
“We will be strongly encouraging everybody in those settings 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,” she said.
Alberta Premier Jason Kenney has vowed to change existing legislation in order to remove any possibility that could allow the province to impose vaccinations.
Schools do require children to be immunized against a number of infectious diseases, but there are exemptions for medical reasons or due to matters of conscience or religious beliefs. If an employer fired an employee who refuses to get a COVID-19 vaccine for such a reason, it could amount to a human rights violation, argues Ouellet.
Kerry Bowman, a bioethicist and a professor at the University of Toronto, says to make a vaccine mandatory is ethically problematic, especially with so many outstanding questions about risks and how much of the population needs to be vaccinated to eradicate the virus.
“Ethically, I’m not a believer in mandatory vaccines. To have something injected into your body that you don’t want or don’t believe is safe is not true informed consent.”
But private companies offering services to customers in congregate settings, such as airlines, restaurants, and sports and entertainment venues, can set their own rules and require proof of vaccination, says Bowman.
“Having the market forces take over is much different than having the state make it mandatory.”
Bowman says he believes it’s likely the necessary number of Canadians will get the shot or shots to protect themselves and others and allow for a return to normal life.
Employers do have an obligation to keep workplaces healthy and safe.
“It is very unlikely that an employer would have grounds to terminate an employee based on their refusal to get a COVID-19 vaccine currently,” wrote Ouellet. “However, if a COVID-19 vaccine was readily available and an employee refused to get the vaccine, the employer could potentially require the employee to be removed from the workplace until the COVID-19 pandemic is contained.”
Some countries already require travellers to have certain vaccines as a condition of entry. The CEO of Australian airline Qantas said passengers will have to provide proof of COVID-19 vaccination.
Airline employees would be a grey area, one of many vaccine-related employment cases that Frankel predicts could end up being fought in court.
“It’s going to be very interesting to see how it all unravels in the courts and in the court of public opinion.”
-with files from Shannon Paterson