Nathan Rayan
British Columbia has commenced the largest mass vaccinations in provincial history, beginning with healthcare workers and seniors over the age of 85. By April 19th, more than 300,000 front-line workers, including first responders, grocery store employees, teachers, and child-care workers, will be eligible to receive a vaccine.
While we are still in the early stages of vaccine rollouts, many employers in B.C. are mulling what their workplaces will look like once a vaccine is available to the general public. Specifically, many employers are wondering whether they can require that new and existing employees be vaccinated.
Nathan Rayan, an associate in our business law and employment law practice groups, recently shared his insights on these questions with News 1130. This article expands on that interview.
Contents:
- Mandatory Vaccine Policies for Existing Employees
- Making Vaccination a Hiring Condition for New Employees
Is there a Legal Precedent for Requiring Employees to be Vaccinated?
The COVID-19 pandemic is an expansive, global health crisis without equal in the modern era. As such, there is no one-to-one legal precedent for our present situation.
Pre-Covid, there had been some limited case law regarding whether employers could implement mandatory flu vaccinations. Generally, these cases involved unionized healthcare employees. Unions have tended to challenge mandatory vaccination policies as an overreach of management power. In 2019, the B.C. Nurses’ Union (BCNU) reached a new agreement with the Health Employers Association of B.C., in which nurses would no longer be required to receive a flu vaccine.
COVID-19, of course, presents a far greater threat than the common flu, and would likely receive different consideration in courts and tribunals.
What Are the Significant Issues at Play for Employers?
In considering vaccination policies, employers will need to balance their legal requirement to provide a safe workplace against human rights considerations—including prohibitions against discriminating based on disability or religion—as well as protecting the privacy rights of employees.
To date, the Government of British Columbia has not passed and legislation that would mandate vaccines for employees, nor has it released clear policy guidelines that would help employers to navigate this difficult and evolving landscape.
Businesses and organizations should consider seeking legal advice to navigate these complex issues and develop sound and legally enforceable policies. Employers may also need to develop different approaches for existing employees and prospective employees, as there is a significant difference between forcing an employee to get vaccinated compared to making it a condition of a job offer.
Can B.C. Employers Require Their Existing Employees to Get Vaccinated?
In British Columbia, most employers will have a difficult time enforcing a mandatory vaccine policy for existing employees. The exception will be some healthcare and residential care workers, or some unionized workplaces where the union is supportive of a mandatory vaccine requirement for its members.
The two routes an employer could attempt to use to enforce a mandatory vaccination policy are occupational health and safety, and a legitimate business requirement (for example, if a job requires regular flights and airlines are refusing to allow non-vaccinated passengers to board that might be considered a bona fide requirement). An employer would have to clear significant hurdles along either route.
Is Vaccination Necessary for Workplace Safety?
All employers have a legal obligation to maintain a safe workplace for their employees. In a factory environment, for example, an employer needs to ensure that workers are protected from physical injury, for example exposure to harmful chemicals, dangerous machinery, etc.
Whether a particular safety policy is reasonable depends on what is reasonable for that particular workplace. On a construction site, of course, hardhats would be an enforceable safety policy; in a bookstore, not so much, even if hardcover novels could occasionally fall off shelves.
To be enforceable, a mandatory COVID-19 vaccination policy would need to be deemed necessary based on the workplace. In most workplaces, the employer’s requirement to provide a safe job site could be met by lesser means than mandatory vaccination, such as by having employees work from home, or through distancing, sanitization, temperature checks, and mandatory mask-wearing. It would likely be difficult for a business to claim that they require an employee to get vaccinated and return to the office, if that employee has been successfully working remotely for the past year, for example.
Who Decides Whether a Workplace is Safe or Unsafe?
The Workers’ Compensation Board of British Columbia (WorkSafeBC) is ultimately responsible for determining whether a workplace is safe. The saying, “no plaintiff, no judge” applies here. For a workplace to be deemed unsafe, an individual or organization would first need to raise concerns with WorkSafeBC, which would then conduct an inspection and make a determination. A COVID-19 related safety inspection would follow similar processes to any other type of safety inspection.
Could Employers Argue that Vaccination is an Occupational Requirement?
The other route an employer might take to try to implement a vaccination mandate for existing employees would be to argue that it is an integral requirement of the job. Employers in hospitality, retail, travel, food processing, personal services, and other industries necessitating close physical proximity are likely to have more success in arguing that a mandatory vaccination policy is necessary, compared to employers in industries where close contact is not required.
Because these vaccines are so new, this argument has not been considered by Canadian courts or tribunals. We should expect to see some decisions considering these claims within the next 6-12-months, as vaccines become widely available to working-age Canadians.
Requiring Existing Employees to Be Vaccinated Will Likely be a Losing Fight for Most Employers
While there are compelling public health arguments for why a frontline worker such as a grocery store clerk, hairdresser or server should be vaccinated, forcing vaccination on someone resistant to the procedure would be an invasive infringement on their bodily autonomy.
The legal test for whether a mandatory medical procedure could be required is not, “what is the best possible safety measure”, but rather “what is necessary to preserve a safe workplace”. While a customer might wish the person serving them dinner was vaccinated, it is likely that a court or tribunal would find that less intrusive measures, such as wearing a mask and hand hygiene, would be sufficient.
Legislation would offer welcome clarification to both employers and employees about which occupations and workplaces merit mandatory vaccinations and which do not. To date, this has not been the B.C. Government’s approach; rather, the government has instead focused on education and encouragement to do the right thing. In a free society such as ours, this is arguably the right approach, although it will have the side effect of decreased certainty and, likely, disputes between well-intentioned employers and employees who don’t see eye-to-eye.
Can Employers Require that New Employees be Vaccinated?
The situation for new hires is different than for existing employees. In most cases, employers will likely be within their rights to require that new employees be vaccinated as a condition of employment. Although such a requirement would be unrealistic at the moment, since most working-age Canadians are not yet eligible to receive a vaccine, this will change before the end of 2021, as vaccines become available to younger people in British Columbia.
Businesses and organizations have tremendous latitude in hiring whomever they want. Employers can hire based on perceived fit; for example, a business could choose to hire someone because of their charisma, sense of humour, or skill in solving Sudoku puzzles if they wanted.
Employers can use whatever reason they like in deciding whom to hire, except for those reasons which are specifically banned, such as the prohibited grounds of discrimination as defined in the BC Human Rights Code.
What Human Rights Principles do Employers Need to Be Aware of?
The BC Human Rights Code protects employees and potential employees from discrimination based on certain protected characteristics. There are two protected grounds that likely to be relevant to COVID-19 vaccination policies:
- Medical Disability: In the employment context, it is illegal to discriminate on the basis of medical disability. This would include a disability that prevents an employee from receiving a COVID-19 vaccination. If an employer refuses to hire a candidate because they are unvaccinated, and that individual has valid medical reasons why they cannot get vaccinated, then that employer would be discriminating based on disability.
However, if being vaccinated were a bona fide occupational requirement, then this discrimination would be excused. This would depend on the specific workplace, and the employer’s ability to accommodate the employee.
For example, an employer might not be obligated to hire an un-vaccinated care home worker who worked with vulnerable adults, but it likely would be required to accommodate a typical office worker by instituting other measures to protect workplace health and safety, such as requiring the unvaccinated employee to wear a mask and maintain social distancing. - Freedom of Religion: Although most religions do not object to vaccines, some groups or individuals may be opposed to vaccination for religious reasons.
In such a case, the same considerations as a medical disability would arise, and the employer would need to assess its legal obligation to accommodate the potential or current employee.
The issue of freedom of religion could emerge as a contentious area for employment litigation. We can easily imagine situations where it will be difficult to reconcile an individual’s legally protected freedom of religion versus an employer’s concern over a safe workplace and the stigma of having unvaccinated workers. I expect to see one or more motivated plaintiffs escalate this issue to the B.C. Human Rights Tribunal within the coming months. While we cannot anticipate the Tribunal’s decision, the significance of this global health crisis is likely to be taken into account. At this time, more than 900,000 Canadians have been infected and more than 20,000 have died as a result of COVID-19 and related complications. We must wonder what the Tribunal’s appetite will be to consider a moral objection to a vaccine that could prevent further death and illness, in the context where the economy has been turned upside down and many Canadians have died or become seriously ill.
What About People Who have “Anti-Vac” Beliefs?
Current Employees
Employers will not be able to dismiss current employees with strong anti-vaccination views without providing them with proper notice of termination or severance in accordance with their employment contract.
However, this does not mean that an employer cannot fire an employee who refuses to get vaccinated. In B.C., employers are generally entitled to dismiss employees for any non-discriminatory reason, so long as they provide sufficient notice of termination.
Job Seekers
If an individual is looking for work, in most cases an employer is likely to be within their rights to require vaccination before extending an offer, regardless of how the applicant feels about the matter. Only protect grounds of discrimination, such as medical disability or religion, will change that scenario. A deeply held personal belief, such as a distrust of vaccines, would not be sufficient to attract special protection for a job seeker.
Can Employers Ask Potential Employees if They Have Been Vaccinated?
Yes, employers can raise this question with prospective employees. An applicant could also refuse to answer, although this might lead to the employer not making them the offer.
It would be difficult to make the argument that posing a question about vaccination status during a pandemic is an invasion of privacy. This question has direct implications for workplace safety, unlike questions about sensitive, irrelevant topics such as sexuality, family medical history, or marital status.
Employers should proceed with care in collecting and storing information about employee or applicant vaccination status and any other related information. This information should be considered sensitive private and must be protected with appropriate safeguards.
Employers should consider developing policies around:
- Whether to require proof of vaccination
- How this information will be collected, protected, and shared as necessary
- How long information will be stored and how it will be securely destroyed
Employers should consider seeking legal guidance to institute policies around the collection of employee health information. Our experienced employment lawyers can advise your organization as to your responsibilities and help you to construct policies to safeguard your organization from discrimination or invasion of privacy claims.
Our Employment Lawyers Are Here to Help
If you are an employer, consider seeking legal advice now to ensure that you have the processes and procedures in place to navigate these complex issues before you encounter issues during onboarding or return to in-office operations.
If you are an employee and you have concerns about a vaccine requirement, you might also benefit from a consultation with a lawyer.
Whether you are an employer or an employee, timely advice given early can protect your interests against potentially costly and protracted disputes. An hour spent with a lawyer during these early stages of the vaccine rollout could potentially help you avoid being embroiled in a legal dispute further down the line.
If you have questions about vaccine policies and your business or workplace, get in touch with our employment law team.
