Mandatory vaccinations, work refusals major issues for employers in 2021, legal experts say

Law360 Canada (January 20, 2021, 9:17 AM EST) -- With the COVID-19 pandemic raging into the new year and people across Canada facing curfews and stay-at-home orders, legal observers are saying employers are likely to see challenges in terms of whether they can compel their employees to get vaccinated and what options they have in dealing with employees saying they feel uncomfortable with coming into work.

Canada has begun to roll out vaccines from coast to coast, aiming to have everyone who wants it to be inoculated by September. But statistics have shown many Canadians will not get jabbed, concerns which are complicating the country’s response to the biggest health crisis since 1919.

Vaccines will be “the” legal issue in 2021, said Michael Lynk of Western University’s faculty of law. He noted courts in Ontario and elsewhere have largely sided with health-care workers who have refused flu vaccines.

“But I think the big issue here will be what are the meaningful differences between the flu and COVID-19 — and it is obvious that COVID-19 spreads much more frequently among all population groups and seems to have a much greater fatality rate,” he said. “Whether it is a successful argument remains to be seen, but I think employers will have a stronger argument to say that employees, certainly in health-care settings, have to have a mandatory vaccination. And if not, then they can’t work there or will have to be accommodated in other positions.”

Arianne Bouchard of Dentons Canada LLP agreed it “all depends on the workplace” as to what can be done in terms of vaccines.

“The general answer would be no, employers do not have the authority to force an employee to get the vaccine — the government can recommend people get the vaccination, but it is still a recommendation and not mandatory so I don’t think employers can go beyond that,” she said. “It is doubtful that a person would lose their job if they they don’t get a vaccine, but in some workplaces it might be reasonable for the employer to put workers who didn’t get the vaccine to put them on some sort of leave, as was done during the H1N1 [swine flu] outbreak in 2009. In Quebec for example, it has been decided that yes, in the health sector, it is reasonable for the employer to remove the employee who did not get the vaccine, because they are more contagious and it is more dangerous for people who are working on the front lines.”

Fear of the pandemic may hit people in different ways and observers are saying the issue of work refusal is one which will likely be a big in 2021, as it already was in 2020. Lynk said the main concern there is whether the employee’s fear has a reasonable basis or not.

“Refusal to work always is ultimately tested by an objective analysis as to whether or not there is a reasonable sense to danger or threat to health and safety,” he said. “And obviously there have been, and there will likely continue, be an increase in work refusals and challenges to employee directives on that basis — but the law stays the same and an employee will always be required to satisfy that basis that the refusal is reasonable.”

David Whitten of Whitten & Lublin said an employer doesn’t have to accept a person’s fear to come into work and let them remain away from the job if they are in an essential industry.

“The employer can challenge that and if there is a dispute the government will be contacted for an opinion, who will then come in and look at the COVID-19 protocols to see whether it is an unsafe environment or not,” he said. “If they feel it is unsafe they will make compliance orders and once you have that you can compel your employee to come in to work unless they can produce a medical note authorizing their absence, and if they can’t they can make it into a disciplinary matter. COVID-19 doesn’t mean employees can just skate and employers don’t have the ability to manage employment and attendance in the workplace — they can.”

With increasing attention being paid to politicians who took trips abroad during the pandemic despite exhorting their constituents not to do so, the issue of what an employer can do in terms of restricting travel has been raised. Bouchard said employers likely do not have the authority to regulate what a person is doing in their personal life when it has no impact on their work activity or the employer’s legitimate interests.

“But I think it is important that they don’t put themselves in a situation where they won’t be able to perform their work because they are quarantined, so that is something employers can make clear — that they won’t be able to grant them additional leave as a result of quarantine if they do travel,” she said. “And obviously once the person really went abroad and returning is not a choice, they have to comply with the quarantine order, but employees are aware of that but still choose to put them in a situation where they can’t possibly be able to do their work performance correctly, this is a ground for discipline in my opinion — this is a situation where an employee has a certain authority to intervene in the travel choices of their employees.”

Whitten noted there have been a lot of concerns raised about the restrictions in place in Quebec and Ontario, but said employers should use common sense as to what they are going to do to comply with them.

“The objective here is to limit contact with others unless it is absolutely necessary, and that is the tent which applies to all workplaces now,” he said. “But they haven’t told us whether a position like a receptionist is essential because somebody has to be there to answer the phones. There is a bit of a grey area there and it is not practical to have the government police that level of detail, so it is going to be a judgment call for employers.”

And Lynk said it was interesting to see how much the thinking on labour and employment issued has changed in a year.

“I remember cases as an arbitrator where the employer was very insistent that an employee could not work from home — and I suspect in the aftermath of this we are going to go through a major rethink of where we work and how we work,” he said. “I think an employer’s ability to insist upon everybody has to be in an office is going to be much harder to make in law when those issues wind up emerging.”

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