Mandatory vaccinations in the non-unionized workplace – considerations for employers
Published September 20, 2021
Since COVID-19 vaccines became widely available in Canada in early 2021, many employers in Canada have been contemplating whether mandatory vaccination policies would be desirable, necessary, and legal. Until very recently, almost no Canadian employers had actually imposed a policy requiring their employees to be vaccinated.
However, in recent weeks the floodgates have opened. The federal government has announced that most federally regulated workers will be subject to mandatory vaccination requirements. Other employers, including multiple large banks and law firms quickly followed suit. In Alberta, both the Calgary Flames and Edmonton Oilers have announced that all of their employees will also be required to provide proof of full vaccination prior to the start of the upcoming hockey season, and Alberta Health Services has recently announced that it will require all of its employees to be fully vaccinated.
As more and more employers rush to implement such policies, employment lawyers have been appearing frequently in the news and on social media commenting on whether mandatory vaccination policies are legal. Some employment lawyers are asserting that employers have an absolute right to implement such policies, and that employers will have just cause to terminate employees who refuse to get vaccinated. Other employment lawyers have expressed the opposite view, asserting that such policies will not be legal for a variety of reasons, and that employers will not have just cause to terminate employees who refuse to get vaccinated.
The reality is that the issue of mandatory vaccinations in the workplace is highly nuanced and does not lend itself to easy answers. The purpose of this article is to briefly highlight some of the issues that employers should consider and to answer some common questions regarding mandatory vaccinations in the workplace.
It should be emphasized that this article is focused on non-unionized workplaces.
Can employers impose vaccination mandates on employees?
The short answer is "yes". Employers can implement a policy requiring employees be vaccinated, subject to the considerations set out below.
All employers have a legal obligation to take reasonable steps to maintain a safe work environment for their employees. In the context of a vaccination policy, the question is whether the implementation of a mandatory vaccination policy is a reasonable step.
A mandatory vaccination policy should directly align with all applicable public health guidelines and medical or scientific evidence regarding the risk of transmission in the specific workplace. In Alberta, the provincial government has not yet implemented any mandatory vaccination requirements. However, the provincial government, and all public health authorities, have strongly recommended that people get fully vaccinated as soon as possible. This fact, combined with the rapidly increasing number of COVID-19 cases in the province, at the time of this writing, likely means that employers have a legitimate basis to implement a policy that seeks to ensure that employees are fully vaccinated, failing which they will be subject to certain ramifications.
It is also important to note that each case will be fact-specific. An employer whose employees are working with vulnerable individuals (such as assisted-living facilities or other care facilities), front line workers (such as dental offices) or working in circumstances that social distancing is not feasible (such as meat-packing plants, factories) will have a stronger basis for implementing mandatory vaccination policies than employers whose employees work in an office environment, where social distancing and other less-intrusive measures than vaccinations are possible.
What are the ramifications for employees who do not get vaccinated?
Employers who implement a mandatory vaccination policy will need to give careful thought to what the ramifications will be for employees who refuse to get vaccinated. A true "mandate" would result in employees who are not fully vaccinated being terminated or subject to other disciplinary action (except where an employee has a valid reason for not getting vaccinated). At the time of this writing, most employers who are implementing mandatory vaccination policies do not plan to automatically terminate the employment of employees who refuse to get vaccinated in the face of such a policy. Rather, employees who are not fully vaccinated will be subject to other measures that vaccinated employees will not be subject to, such as:
- frequent rapid testing in order to be allowed into the workplace
- modified shift schedules to allow such employees to work at times where they will not have to come into close contact with other employees
- being required to work remotely
What measures non-vaccinated employees will be subject to will depend on the nature of the workplace, and how strict the vaccination policy is in the particular circumstance.
On the other hand, it is almost a certainty that some employers will implement vaccination policies that will result in employees who refuse to get vaccinated (subject to human rights considerations) simply being terminated. It is an open question whether a termination of employment in such circumstances will be for just cause or without just cause. That issue is addressed in more detail below.
Human Rights considerations
The Alberta Human Rights Act (the Act) prohibits an employer from discriminating against an employee on the basis of any of the protected grounds set out in the Act. Among the protected grounds set out in the Act are disabilities (physical and mental) and religion. Accordingly, employees who have a valid medical reason for not getting vaccinated, or who have a genuine religious basis for not getting vaccinated, have protections under the Act. Employers will be legally required to accommodate such employees up to the point of undue hardship.
These accommodations may include the following measures: allowing such employees to work remotely, facilitating such employees working in a way that they are able to avoid close contact with other individuals in the workplace, or modifying shift schedules to allow such employees to work at times where they will not have to come into close contact with other employees.
The above measures are not an exhaustive list. The employer and the employee are legally required to work together, acting reasonably, in an attempt to find suitable accommodations.
Any mandatory vaccination policy will, of course, require employees to provide proof of their vaccination status. This will typically involve employees being required to provide a copy of the vaccination form received after their second dose of the vaccine. Such information is personal information pursuant to Alberta's privacy legislation, and as such, the collection, use, and disclosure of the information must be authorized by the privacy laws. Among other requirements, employers will be required to take steps to ensure that such information is protected and that only a very limited number of employees within the company who have a genuine need to know such information will have access to it. Employers will also need to follow legislation with respect to how long such information is kept.
Will employers have just cause to terminate unvaccinated employees?
For employers that elect to terminate employees who refuse to provide confirmation of their vaccination, the obvious question that arises is whether such termination will be for just cause. There is no case law on this issue, given how new the issue of mandatory vaccinations in the workplace is. Quite simply, it is not presently possible to have any certainty as to whether courts will consider a termination for refusing to get a vaccine to be just cause or not.
Notwithstanding commentary suggesting otherwise by employment lawyers in the press and on social media, there is a very real possibility that courts will determine a termination of an employee for refusing to get vaccinated to be without just cause. Whether such a termination is for just cause will turn heavily on the facts in each particular circumstance. It will likely be more difficult to establish just cause for terminating an office worker who refuses to get vaccinated than it will be for a health-care worker or factory worker.
In the event that a termination of an employee for refusing to get vaccinated is without just cause, employers will owe termination pay to the employee. The amount of termination pay owing will depend on a variety of factors, including whether such employee has a written employment agreement with an enforceable termination provision. Where no such employment agreement exists, an employee's termination pay will be based on the common law, and could be as high as 18 to 24 months of total compensation in certain cases.
Practical and business considerations
Employers who are considering imposing a mandatory vaccination policy should give real consideration to some of the practical and business implications of doing so. More specifically, it stands to reason that many workplaces will have a similar vaccine hesitancy rate as Alberta generally. Based on current data, slightly more than 20% of eligible Albertans have so far refused to receive their first vaccine shot. Before implementing a policy providing that employees who refuse to get vaccinated will be terminated or subject to other measures, employers should ask themselves whether they are willing and able to terminate or otherwise go without the services of 20% or more of their workforce, or subject 20% or more of their workforce to other restrictions. Many employers would have great difficulty carrying on business if they lost anything close to 20% of their workforce.
Even where a policy does not provide for termination but instead provides for other measures for unvaccinated employees, there are practical considerations. Employers should be consistent with implementing any other measures, such as rapid testing requirements for unvaccinated employees. For most employers, it stands to reason that among those refusing to be vaccinated will be certain senior executives and other key employees. If an employer has a policy that provides that any unvaccinated employees will be subject to frequent or daily rapid testing in order to be allowed into the workplace (to give just two examples), the employer must apply that policy to senior executives and other key employees just as they do to lower level employees. In theory this seems obvious, but in many circumstances it is likely to be problematic trying to impose such requirements on a senior executive or other key employee.
So what next?
The question of whether an employer can or should implement a mandatory vaccination policy is highly fact-specific, and at least some of such facts (the COVID-19 positivity and hospitalization rates) are changing on an almost constant basis. Moreover, there are human rights, privacy law, and employment law implications to implementing such a policy. Accordingly, before implementing a mandatory vaccination policy, employers should obtain legal advice for their specific circumstances.
If you are an employer looking to learn more about the complex issue of mandatory vaccinations in the workplace, please reach out to Bob Graham, Janna Young, Richard Steele, or any other member of the employment law team for advice.
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