The Question
I own and operate my own salon and spa and we’ve been closed for most of COVID-19 because of lockdowns. When it becomes available, and when the lockdowns are lifted, I would like my staff to get vaccinated before they return to work to help keep everyone safe. I’d like to advertise this to our customers as well to encourage them to visit us. Can I require my staff to get vaccinated from COVID-19 before they come back to work?
The First Answer
Samia Hussein, lawyer, Sherrard Kuzz LLP, Toronto
An employer can require a COVID-19 vaccination as a condition of employment, subject to the considerations outlined below.
First, if a mandatory vaccination policy is implemented, an employer will need to consider whether and how it can accommodate any employee unable to receive the vaccine for Human Rights Code-related reasons, such as an underlying health condition or religious belief. Accommodation should be addressed in the policy.
Second, in a unionized workplace, a mandatory vaccination policy might be challenged on the basis it is a violation of the collective agreement. In this case, an employer will need to be able to demonstrate to an arbitrator the policy is reasonable for health and safety reasons or other workplace factors. Otherwise, the policy may be struck down. Under Ontario’s Occupational Health and Safety Act, an employer is required to take every precaution reasonable in the circumstances for the protection of a worker. This includes protection against COVID-19.
Finally, an employer will need to consider what it will do if an employee refuses to be vaccinated on the basis of personal choice. Depending on the nature of the workplace and the employer’s justification for requiring vaccination, refusal to vaccinate may not amount to just cause to terminate an employee. In this case, if the employee is non-unionized they may be entitled to pay in lieu of notice of termination; and if the employee is unionized they may be reinstated to employment.
The Second Answer
Veronica Ukrainetz, principal, Ukrainetz Workplace Law Group, Vernon, B.C.
Employers cannot legally require staff to be vaccinated. This would be a breach of the employee’s personal privacy and security of person. It may also be a human-rights issue (discrimination on the basis of disability or a validly held religious or political belief). As well, the employer may be liable if the employee experiences a severe adverse reaction to the vaccine.
Openly encourage all employees to be vaccinated. Address vaccine hesitancy by providing employees with reliable information to assist them in making an informed decision. Consider positive incentives upon providing proof of vaccination such as a paid day off the day of and/or the day after the vaccination, or a vaccination bonus or gift. However, if an employee has a valid human-rights-based reason for not being vaccinated, these positive incentives cannot be withheld.
The most significant motivator for employees may be that the unvaccinated employee or the employee who refuses to provide proof of vaccination will be required to continue to minimize exposure risks. Those employees may be required to be regularly tested, to continue with physical distancing, mask-wearing and other appropriate PPE and to not attend group events where physical distancing is not possible or there is inadequate ventilation.
Employers may also consider maintaining modified work conditions for the unvaccinated employees (remote work, protective screens, staggered shifting, moving office or work areas). If it is not possible to adequately minimize the risks and keep the employee working, the employee may be placed on an unpaid leave of absence. Lastly, seek legal advice, as the legal environment relating to vaccines and appropriate employer responses is undergoing constant change.
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