Vaccination Status: It’s Complicated

Employment and Labour, General Litigation

Can I Require My Employees To Be Vaccinated?

COVID-19 has presented many new challenges for employers. With a vaccine on the way, employers are having to ask a new type of question: can I require my employees to be vaccinated? The answer is yes – but it’s complicated.

When considering implementing a vaccine policy, employers must be careful to consider not only their employees’ health, but also a myriad of other concerns. Different rights must be balanced against one another: one employee’s right to a healthy work environment must be balanced against another’s right to privacy; one’s safety against another’s individual autonomy. While the health and safety of both employees and customers are important, no single right takes precedent above the others.

Furthermore, there may be many legitimate reasons that an employee may be unable, or may refuse, to vaccinate. People with certain health complications have yet to be approved for a vaccine. Additionally, religious beliefs may prevent vaccinations. The lack of availability of a vaccine may also present problems. What is an employer to do if they implement a vaccine policy but an employee is unable to attain one?

Employers must have a plan in place to account for those who cannot vaccinate when their workplace requires people work in person. A good starting point is considering how to accommodate these employees. Consider the specific reasons, including the safety of employees and customers, for requiring each employee to be vaccinated. How often do individual employees interact with customers, or other employees? Could employees continue to work from home or preform their duties remotely? Employers may also want to consider their ability to implement precautions other than vaccination such as sanitizer, plexiglass, and masks.

Certain employees may simply not want to be vaccinated for reasons other than religion or health. As discussed above, accommodation is often the best starting point. It may be possible for an employee who refuses to vaccinate to work on an off-hours schedules, or to work from home and interact with their coworkers using video or teleconferencing. That said, refusing to vaccinate for personal reasons is not likely protected by Human Rights legislation, and if none of these accommodations are tenable, employers may determine there are grounds to terminate. However, employers must keep in mind the employee’s history and the severance obligations that may result if the employee is terminated.

Ultimately, it is not clear at this stage whether refusing to vaccinate will be considered grounds for termination or whether the Courts would award the employee damages in lieu of notice. The factors discussed above will be important: does the employee need to be in the office? Are there other ways to stay safe? Are there health, religious, or other protected grounds for not getting the vaccine? Employers should make sure to talk to a lawyer before making decisions and before implementing a policy requiring vaccinations, to make sure they are doing everything they can to protect their business.

Please reach out to any member of our Employment and Labour group who can help you navigate these issues:

 

Chris Martin
Partner | Langley
778 289 9542
[email protected]
Timothy Delaney
Partner | Vancouver
604 484 3059
[email protected]
Tamara Dewar
Partner | Langley
778 289 955
[email protected]
Cassandra Drake
Partner | Vancouver
604 484 3097
[email protected]
Chad M. Gerson
Partner | Langley
778 289 9509
[email protected]
Brad Martyniuk
Partner | Vancouver
604 484 3068
[email protected]
Gaurav Parmar
Associate | Langley
778 289 9544
[email protected]
Braeden Wiens
Associate | Vancouver | Langley
778 289 9501
[email protected]

 


 

Read the other articles in this series:

Privacy Please: Vaccinations and Employer’s Privacy Obligations
New Concerns and New Responsibilities

 

This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.