Can an employer ask if someone has been vaccinated? Can someone be fired for not taking the vaccine?
As vaccinations continue to ramp up around Canada and many workplaces are seriously considering a return to normal, Canadian HR Reporter spoke with Neena Gupta, a labour lawyer at Gowlings in Waterloo, Ont., about what employers can and cannot do when it comes to vaccines.
Q: Can an employer ask if an employee has been vaccinated?
A: “Typically, an employer cannot ask about any kind of medical-related information unless it is relevant to some aspect of the job or some benefit that the employee is getting.
“Many of the employers who have been asking around vaccinations fall into two large distinct buckets. The first bucket is health care, day care, vulnerable sector — areas where arguably as part of the health and safety plan, vaccination is a key component. You may have a requirement that a nurse be vaccinated against measles, mumps and rubella; a daycare worker may have to be vaccinated against other transmissible diseases. That’s one bucket.
“The other area where we’re seeing this happen is where employers are saying: ‘We will give you paid time off to get your vaccine appointment but then that is predicated upon you providing us proof of you getting the vaccine,’ because that’s the eligibility requirements for getting the paid time off.”
Q: What are the privacy laws around all of this?
A: “Ontario does not have significant legislative privacy protection in the private sector, employment-record area but employers really need to work on the best practices of privacy.
“That means obtaining consent, disclosing the reasons which the information is being sought and disclosing how the information will be kept protected and ultimately discarded if it’s not required any longer.
“In Quebec and B.C., they do have privacy legislation about employee data, and you would have to comply with those requirements just like employers have to comply for any other confidential and personal information that they gather.”
Q: Can an employer require an employee to be vaccinated?
A: “In Quebec, the public health authorities have said health-care workers have to be vaccinated. In that context, it becomes an easy legal question: Have you complied with the law? Are you vaccinated? For the rest of the provinces, it’s much more complicated.
“In the unionized sector, there’s law about management rules and new management rules such as you have to get a COVID-19 injection. These really have to be developed in consultation with the union and reasonable under the rubric of legitimate management rights and so it’s very difficult in a unionized setting to impose a mandatory vaccination policy unilaterally.
“In the non-unionized sector, it’s a very interesting analysis. You may have an argument, if you’re forcing people effectively to be vaccinated in order to work, you’re imposing work conditions that didn’t exist before and it’s kind of a constructive dismissal. We don’t have that law yet. If it’s a new employee, you could argue, ‘I’m setting the new terms, you can take the job on this basis or not.’”
Q: Are there legitimate reasons for an employee to refuse a vaccine?
A: “The areas that are protected under the law are human rights, particularly disability and illness and possibly religion and creed, and so [if] an employee says, ‘Well, I’ve got a protected reason to refuse vaccination,’ then the employer has an obligation to accommodate those requests.
“The human rights tribunals in Canada, at least in Ontario and B.C., have sent signals that being an anti-vaxxer or being an anti-masker or being a person who believes COVID-19 is a hoax is not sufficient to trigger human rights protection.
“But you still have a legitimate number of people — maybe as high as two to four per cent — who can’t get the vaccine for health reasons.”
Q: Can an employer terminate an employee for refusing to get the vaccine?
A: “Refusal to take a vaccine is unlikely to be seen as just cause for termination, except maybe in circumstances where there’s some kind of high degree of risk: long-term care, highly vulnerable people.
“If you’re going to terminate people, in most cases, if you’re in the non-unionized workplace, you can terminate anybody you want, provided that you provide them adequate notice and that’s in the common-law provinces.
“If you’re a federal employer, after a regular non-management employee’s been there for 12 months, they have specific protections against unjust dismissal and I’m not entirely convinced that you could say you’ve got a just reason to terminate because somebody refused a vaccine.
“In the unionized context, you can definitely expect robust grievances if an employer seeks to terminate a worker because they refused to have a vaccine.”