Most of us have heard the news by now; the Pfizer-BioNTech COVID-19 vaccine has arrived in Canada. The federal government authorized the vaccine for use in Canada in accordance with the Interim Order Respecting the Importation, Sale and Advertising of Drugs for Use in Relation to COVID-19. The federal and provincial governments plan on beginning the long task of vaccinating Canadians over the next weeks and months. The question is, will employers be able to demand that employees take the vaccine before returning to the workplace?

The Approval Process in Canada

Canadian scientists had finished a two months-long review of the vaccine, after which the federal government approved it. The vaccine is reported to have an efficacy of 95 percent, and it was stated that approximately 249,000 doses of the two-dose vaccine would arrive in Canada by the end of 2020, with millions more to follow in 2021. Long-term care homes and their staff, as well as front-line health-care workers, are said to be the first people in line for the vaccine. Individuals who are considered part of the non-priority populations will likely start to be immunized sometime in the spring of 2021. The question is, how many individuals are willing to take the vaccine when it’s their turn? For employers and employees, the question gets even more specific. Can an employer require their employees to get vaccinated?

Employers Obligations to Provide a Safe Workplace

Employers in Ontario have an obligation to keep their workers safe according to the Occupational Health and Safety Act (OHSA). The OHSA imposes duties on the employer, which includes providing information, instruction, and supervision to a worker to protect their health or safety, and taking every precaution reasonable in the circumstances for the protection of a worker.

In addition to the OHSA requirements, the Ontario government strongly advises that employers develop a COVID-19 safety plan. That includes screening employees, requiring that visitors, employees, and clients wear masks and that people maintain at least two metres of distance.

Employee Obligations to Follow Workplace Safety Rules         

Under the OHSA workers have duties as well, which include but are not limited to:

• Working in compliance with the provisions of the OHSA and its regulations;
• Using or wearing the equipment, protective devices, or clothing that the employer requires to be used or worn; and
• Reporting to his or her employer or supervisor any contravention of the OHSA or its regulations or the existence of any hazard of which he or she knows.

The OHSA also says that a worker must consent to participate in a prescribed medical surveillance program.

Can an employer compel an employee to get the COVID-19 vaccine?

Despite OHSA regulations and employer-imposed rules regarding workplace safety, it is not likely, at least at this point, that an employer could compel a worker to get the COVID-19 vaccine. That is because there is a tension between work safety laws, human rights laws, and civil liberty rights when it comes to mandating medical treatments for individuals. The province of Ontario, and Canada as a whole, have human rights legislation that requires employers not to discriminate on prohibited and protected grounds. If an employee claims they are refusing the vaccine on the basis of disability, then this is likely a valid ground. For instance, at this point in time, the Government of Canada has warned individuals with allergies to the vaccine’s ingredients against receiving the vaccine.

However, what happens if the employee refuses the vaccine on a non-protected ground? Employers can dismiss employees, who are non-unionized, on a without cause basis as long as they give them proper notice and the dismissal complies with human rights legislation. However, if an employer were to let an employee go for refusing the vaccine, it is questionable whether that would hold up in court, as that could be framed as a termination with cause. Consequently, a wrongful dismissal claim could arise for lack of notice.

The issue of mandating individuals to get vaccinated during a global pandemic is unprecedented. Unless and until we get some guidance in the form of case law on this matter, and/or unless the government(s) make COVID-19 vaccines mandatory, the answer to whether employees could be compelled to take the vaccine is not clear at this time.

The question of whether an employer can require an employee to receive the COVID-19 vaccine is quite complicated. It would be prudent for employers and employees to consult with experienced employment lawyers regarding any workplace policies around the vaccine.

For advice on these and other employment or labour law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.