Is it a good way to reduce sick days or a violation of employee rights?
Question: Our employees have very specific individual responsibilities and too many absences can hurt the business. Can we require employees to get flu shots (if they’re not allergic) to reduce the chance of them needing sick days or spreading it around the workplace?
Answer: An individual’s bodily integrity is accorded the highest degree of privacy protection. As such, an employee cannot be compelled to submit to a flu shot without that employee’s freely given consent or a contractual, collective agreement or statutory right of the employer to insist on employee immunization. The case law provides no support for recognition of an employer right to require flu shots to protect the employer’s financial interests or to reduce its potential liability for sick pay.
Arbitral jurisprudence has recognized a right in some employers to insist their active workforce be immunized. Specifically, employers engaged in the provision of health care and residential care services, especially those catering to the elderly or others at particular risk, have been found justified in redeploying or temporarily sidelining employees who refuse to get flu shots.
In one such case — SEIU, Local 183 v. Trillium Ridge Retirement Home — the employer had introduced a mandatory policy requiring its active staff to be vaccinated or to take antiviral medication during an outbreak of influenza in the facility. Employees who refused were required to remain off work without pay for the duration of the outbreak. The union grieved, taking the position that the employer’s policy constituted an unreasonable invasion of the employees’ bodily integrity.
In upholding the policy, the arbitrator cited a number of considerations supporting its reasonableness. These included the facts that employees were not compelled to be vaccinated but merely suffered financial consequences unless they had a medical or religious reason for refusal; there was ample evidence of the effectiveness of vaccination in controlling transmission and severity of flu symptoms and complications, indicating a rational connection to the legitimate objective of protecting the health and safety of facility residents and staff; and employees were informed as to the nature and purpose of the policy and the consequences of refusal.
A number of subsequent decisions arising in similar contexts have upheld such policies and actions taken in pursuit of them where those actions were not overly intrusive and did not overreach the employer’s legitimate interests: Carewest v. A.U.P.E.; Chinook Health Region v. U.N.A.; Interior Health Authority v. BCNU.
In Interior Health Authority v. BCNU, the collective agreement expressly extended to the employer a right to impose mandatory immunization. Despite this, the union challenged the employer’s immunization policy and invoked the Canadian Charter of Rights and Freedoms. It was alleged the policy offended the employees’ right to liberty and security of the person because the employer refused to pay employees who were held out of service because of their refusal to get immunized or receive antiviral medication.
The arbitrator held that the charter did not protect economic rights to exercise particular employment nor did it protect interests that were not of fundamental importance. The employees had a choice and the economic consequences of refusal to be immunized were not so severe as to amount to coercion — the effective denial of an individual’s choice over her body. In the absence of effective coercion, the charter was not triggered. The arbitrator refused to follow a contrary arbitration decision holding that a non-disciplinary suspension for refusing to undergo immunization amounted to forced medical treatment contrary to the charter.
Where the employer does have a right to compel immunization, it has been held to be a very serious employment offence for an employee to continue to work without compliance. In the 2006 arbitration North Bay General Hospital v. O.P.S.E.U., the employee was justifiably dismissed when it was discovered she worked without immunization. Interestingly, the board awarded punitive damages in the amount of $750 for a technical breach of the employee’s privacy rights brought about by the occupational health and safety department’s disclosure of her medical information to her managers.
These samplings of arbitral jurisprudence on the issue of mandatory immunization indicate two points. First, arbitrators acknowledge that unimmunized employees can disrupt an employer’s workplace, giving the employer a potential right to require either immunization or an effective distance from at-risk employees, patients or clients. This distance may include a layoff without pay for the duration of an influenza outbreak. Second, the existence of a right to remove employees from the workforce involves the application of a balancing process that occurs in any case where an employer’s interests come into conflict with fundamental rights of the workforce.
To date, that balancing process has permitted removal of employees where their presence creates life-and-death risks for others, typically under the employees’ care; where the employees are inconvenienced by loss of earnings but not loss of a job; where the banishment from the workplace is of limited duration; where only those whose presence actually creates a risk are affected; and where other less intrusive means of obtaining consent to immunization have been tried without success.
If the circumstances existing in a workplace do not provide similarly compelling justification for a mandatory immunization policy, it is unlikely such action would be permitted.
For more information see:
•SEIU, Local 183 v. Trillium Ridge Retirement Home (Dec. 18, 1998), J. Emrich — Arb. (Ont. Arb. Bd.).
•Carewest v. A.U.P.E., 2001 CarswellAlta 1851 (Alta. Arb. Bd.).
•Chinook Health Region v. U.N.A., Local 120, 2002 CarswellAlta 1847 (Alta. Arb. Bd.).
•Interior Health Authority v. BCNU, 2006 CarswellBC 3377 (B.C. Arb. Bd.).
•North Bay General Hospital v. O.P.S.E.U., 2006 CarswellOnt 8751 (Ont. Arb. Bd.).
