With the rollout of Moderna and Pfizer vaccines, employers and most employees are looking forward to a return to some semblance of normalcy and, for many, a return to the workplace for all. With vaccine hesitancy, the anti-vaxxer movement and employees’ simply wishing to continue to work from home forever, employers are rightly concerned about whether they can require employees to get the vaccine or face dismissal. Our response to them is a confident and lawyerly “maybe, sort of, not really”.
The obligation to keep employees safe at work falls squarely on the employer under the Ontario Occupational Health and Safety Act. That law provides that employers must do what is reasonably necessary to protect the workforce. Where preventable illness and injury occurs, employers can face steep fines and prosecution. In addition, employers can face negligence claims for failing to keep employees safe at work. Employees also have the right to refuse unsafe work by filing a complaint with the Ministry of Labour without fear of retribution. As stated in previous posts, there is no free-standing right to work from home or to refuse to return to the office when health and safety measures are in place.
Under that occupational health framework, COVID-19 presents a clear and present danger to that workforce, therefore the employer must do all that is reasonably necessary to protect the workforce from contracting the disease. Currently, employers are keeping their workforces safe through policies, such as telework, social distancing, handwashing and barriers. With the advent of the vaccine and COVID-19’s potentially deadly consequences, we believe employers will be within their rights to further extend protection to their employees by insisting that the workforce be inoculated to protect one another, as well as clients and customers. Refusal to do so could result in physical exclusion from the work premises and in some cases dismissal (with or without cause depending on the circumstances).
The right to implement policies to protect the workforce is not without limitation. Under the Ontario Human Rights Code, employers have a duty to accommodate employees in the workplace with respect to protected grounds, such as religion, creed, sex and disability. In the case of an employee who cannot take the vaccine due to sincerely held religious grounds or a disability, employers will have to accommodate employees on those protected grounds. It is not enough to simply be “uncomfortable” with the vaccine, “anti-vax”, “not ready”, or distrustful generally of “big pharma”. What might accommodation look like? In those cases, employers may be required to accommodate such employees by allowing telework or off-pique attendance, among other measures.
While we are a long way off from a full vaccine rollout, employers are wise to turn their minds now to the workplace implications of a national vaccination campaign. Will employees be enticed to go get vaccinated? Will that time be paid? In our view, employers are well placed to answer these questions in advance of jabs in arms.