Honestly held belief in conspiracy theory is not a protected ground requiring accommodation, he says
With vaccines slowly rolling out in Ontario, employers will need to know their rights and obligations and how to navigate their relationship with workers. Whether employers can require vaccination as a condition for employment and the factors to keep in mind when an employee refuses are among the subjects on which employment lawyer Shane Todd, a partner at Fasken Martineau DuMoulin LLP, is currently advising clients.
Todd will present on vaccines in the workplace, at Canadian Lawyer’s Employment Law Masterclass on April 27. The program, which may qualify for 3.5 hours of CPD credit, begins at 9 am. Vaccines in the workplace is the second session of the day and begins at 9:50.
“It's going to be very fact specific,” says Todd. “Some employers may be able to require employees to get vaccinated. But it's going to depend on the particular context of the workplace and the nature of the work.”
Some guidance on mandatory workplace vaccination can be gleaned from caselaw, but it is “limited,” mostly arising in unionized workplaces, primarily long-term care, retirement homes and other health-care contexts, he says. Also, these cases mostly deal with the flu vaccination.
The general rule dictates that an employer cannot force their workers to get vaccinated, says Todd.
“They have a right to refuse medical treatment unless it's a bona fide occupational requirement, or it's something that's reasonably required as a precaution for health-and-safety purposes in the workplace,” he says.
Todd is helping clients draft vaccination policies and assisting them in devising strategies by which they can permissively encourage their employees to get vaccinated. Arranging voluntary vaccination clinics at the workplace and providing paid time off for vaccination are among the options, he says.
Employers must accommodate their employees’ disabilities and religious beliefs, which may produce objections to mandatory vaccination. These accommodations must only be made up to the point of undue hardship, the legal standard which weighs factors including cost and safety, says Todd.
“The employer has to engage in a process of accommodation to see if they can amend the rules they have in place to help that employee engage fully in the workplace,” he says. “So, are there other ways to keep that individual safe at work, short of a vaccine, that would allow them to come to work?”
“And there probably are. Masking seems to be particularly effective. Social distancing seems to be effective. Enhanced cleaning. All of those things we've seen have been really effective in mitigating risks for employees.”
But while honestly held religious beliefs must be accommodated to a point, an honestly held belief in a fringe theory found on the internet, does not.
“Anti-vaxxers are not traditionally considered to be someone who would be entitled to human rights protection,” says Todd. “Someone's belief that in vaccination is a government conspiracy, for example, or they’re being chipped as part of their vaccination, that probably does not trigger human rights protection.”
While serious complications from the vaccine are “extremely rare,” they can happen, he says. Depending on the degree of the impairment from taking the vaccine, that may be a disability which the employer must accommodate. Paid sick leave or something of that nature would be triggered, he says.
Since workers’ compensation is intended to cover employees whose injuries arise out of or in the course of their employment, an employee experiencing an adverse reaction to the vaccine, if that vaccine were mandatory, could apply for coverage under the workers’ compensation legislation, says Todd. Many workplaces are mandatorily required to be part of the workers’ compensation system, but many opt out.
“It's not mandatory for every industry, every employer,” he says. “So that's going to vary depending on which industry employers are in. There are differences in coverage across Canada.”