Many employers are feeling the urgency of ensuring their employees are vaccinated as soon as possible and are considering making it a requirement. If employers want their teams to return to the workplace or continue working but with reduced health and safety measures, it’s likely that most won’t feel comfortable until their employees have been fully vaccinated. But as necessary as full vaccination is, the question remains: “Can employers require vaccination?”
In a miracle of medical research, effective vaccines for COVID-19 are available, giving us all hope that the pandemic might soon end. When that end arrives depends on vaccination rates: how many people receive the vaccination, how soon, and its effectiveness against the new strains we keep hearing about.
“Can employers make it a requirement to get the vaccine?”
It would be nice to give a plain yes or no, but it isn’t that simple. The short answer is that employers probably can’t require employees to be vaccinated, but it depends on their jurisdictions laws, which might change with pandemic conditions: for example, surging case numbers or low voluntary vaccination rates might compel governments to adjust their approach. If legislation changes, we’ll keep you informed with our monthly newsletter updates and compliance centre. But for now, we’ll try to explain the current state and give some context for what employers can do.
To put it mildly, legal opinion is divided on whether employers can require vaccination, and if so, under what circumstances. There is some precedent regarding previous influenza outbreaks, where arbitrators found that even a hospital could not require its employees to undergo vaccination against their will, but ultimately these decisions were province-specific and may be answered differently in other parts of the country. In addition, we might also see new legislation that further defines the possibilities of employers requiring vaccination. For now, though, it’s probably the closest thing we have to a firm answer until a COVID-19-specific test case is tried and decided.
The question remains difficult because there are many competing obligations involved. On the one hand, employers have an obligation to do everything reasonable under the circumstances to protect health and safety in the workplace. On the other hand, employees have a right to privacy over their medical information, as well as other protections under the Canadian Charter of Rights and Freedoms, as well as any relevant human rights legislation. Under these laws, employees who have underlying health conditions or religious objections beliefs that conflict with vaccinations are protected, and employers cannot discriminate on those grounds—except where accommodating such employees would cause undue hardship or compromise health and safety (among other exceptions). No doubt it’s becoming obvious why there are no easy answers for this complicated circumstance.
Having said all of that, employers can agree to vaccination programs with their staff (or trade unions as the case may be). If consent is obtained or negotiated, this should be clearly recorded in writing and is the clearest approach to take until we have further clarity on the issue.
We have the answers when COVID-19 challenges arise
Responses will change as new information becomes public. For now, download our FREE COVID-19 Vaccination Preparedness Guide for suggestions you can act on immediately to prepare for widespread vaccination roll-outs.
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