There has recently been a lot of discussion about the COVID-19 vaccine and who will get it first. Essential workers most likely to transmit the coronavirus, such as health-care workers, and other workers providing services essential to society have been named as two groups who will have priority access.
Many businesses owners may now be wondering, how they will be affected by the availability of vaccinations and how this will affect their workforce. Some workers might refuse to get vaccinated and this will put employers in a tricky position. Could employers bar unvaccinated staff from coming into the workplace?
Can employers require employees to get the vaccine?
Employers cannot make it a mandatory condition of employment to get a COVID-19 vaccine, but they can strongly suggest that their employees get it.
Although employers have a duty to protect employees from workplace injuries and illness, this duty has reasonable limitations. Just as employers cannot currently require employees to get a flu shot, they would most likely not be able to require them to get a COVID-19 vaccination. When a vaccine does become available, employers can educate employees on its important and recommend that they get it.
Are there potential consequences for requiring employees to get a vaccine?
It is unlikely that the government would make vaccination mandatory for workers for civil and human rights reasons. Businesses would be at risk for implementing such a rule in their workplaces for similar reasons.
An employee could be exempt from vaccinations for medical or religious reasons. Some workers might refuse vaccination because of a pre-existing medical condition that would put them at risk. Others might refuse the vaccine for reasons relating to mental health. Terminating an employee under an exemption could amount to discrimination under human rights legislation.
There is currently no legislation under which an employer would have grounds to terminate an employee for not getting a COVID-19 vaccination. Doing this could expose a business to the risk of wrongful dismissal claims.
There is also another risk to businesses who push employees to get vaccinated. If a worker starts experiencing side effects, it is possible that they might seek legal action against their employer for pressuring them into getting the vaccine.
How can employers manage health and safety risk with employees who refuse the vaccine?
Employers can ask workers to stay away from the workplace until the pandemic is over unless they get a vaccination, however this comes with its own risks as well.
One option some employers might consider, is to allow employees who do not want to get a vaccine to continue working remotely. If remote work is not possible, employers must ensure that their workers continue to follow existing health and safety guidelines in the workplace.
As the vaccine becomes available, there will be a period when some workplaces’ employees get vaccinations while others will have to wait, depending on their industry. More information is expected to become available in the coming months. At this time, businesses should be patient and stay up to date on government guidelines regarding this matter.
Puneet Tiwari is Legal Counsel & Legal Claims Manager at Peninsula Canada. He has practiced as an employee side employment lawyer for several years while also running his own small business.
