Can Employees be Required to Vaccinate?

Written by on August 3, 2021 in Covid-19 Centre, Employment Law Blog, Employment Law Issues
Required to Vaccinate

By Ron Minken

The push for vaccine passports and mandatory vaccinations from many segments of our society has some employers wondering whether or not they can mandate/force their employees to get vaccinated.

The short answer to this question is likely no, but it depends on the circumstances.

When looking at whether or not you can mandate that your employees be vaccinated, there are three considerations. These considerations are:

  • Case law
  • Bona Fide Occupational Requirements
  • Occupational Health and Safety Act (Section 25 (2) (h))

Case Law

Because there is no case law on the topic of mandatory COVID vaccination, we have to look at comparative case law instead. The comparative cases that can be examined in this case involve drug testing, COVID-19 testing, and flu vaccine.

In none of these comparative cases do the courts say that employers may mandate vaccinations for their employees.

Bona Fide Occupational Requirements

For this consideration, we need to look at the actual role of the employees in question to see whether the employer has a right to mandate vaccinations. Such roles may include healthcare workers, first responders, or roles where there is close contact with workers such as in factories or production facilities.

Some employers have already used this consideration to mandate the COVID shot for their workers – such as in many long-term care homes. That being said, with the recent announcement made by the Ford government that public healthcare employees would not have to take mandatory vaccinations, it will be interesting to see how this plays out in the weeks and months ahead.

Roles where the employer would likely not have a right to mandate vaccinations would be office workers who do not work in close proximity with other workers especially if the other workers are masked and either social distance or are capable to social distancing.

Occupational Health and Safety Act

Section 25 (2) (h) of the Occupational Health and Safety Act states that “an employer shall…take every precaution reasonable in the circumstances for the protection of a worker.”

So, the employer’s “circumstances” will determine whether it is possible for employers to require that their employees vaccinate.

Steps to implementing a mandatory vaccine policy

For roles that have bona fide occupational requirements, vaccine requirements may be possible to include in employment agreements as well as in workplace policies. Your approach to this will be different depending on whether you are dealing with current employees or with future employees. Of course, there should be exceptions for employees requiring accommodation under Human Rights legislation and the Accessibility for Ontarians with Disabilities Act, 2005.

Policies requiring vaccinations should include three elements:

  • They must be reasonable.
  • They must include accommodation.
  • They must be clearly communicated to all employees.

A hurdle for any employer who has determined that they can require their employees to vaccinate and have decided to include this in an employment agreement or policy, is whether they can actually require their employees to disclose whether they are vaccinated.

If you are an employer looking to implement a vaccine policy, it is a good idea to consult with an employment lawyer to ensure that you are not infringing on any rights. Likewise, if you are an employee and feel your employer’s policies are not reasonable, you may need to work with an employment lawyer to protect your rights. Contact us today or call us at 905-477-7011 for assistance prior to taking any steps that may expose you to legal liability.

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Please note that this article is for informational purposes only and does not constitute legal advice.

Contact Minken Employment Lawyers today to speak with a member of our team.

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