What if an employee refuses, can they be disciplined?
So, you want to require your employees to get vaccinated, but are wondering, "Can I do that?"
What if an employee refuses? Can an employer discipline or dismiss an employee if they refuse to get vaccinated?
Not surprisingly, like most legal questions, the answer is "it depends."
No automatic right to mandate vaccines
Employers do not automatically have the right to mandate vaccines in all circumstances and to all employees. Rather, it would have to be a fact-based analysis depending on various factors, such as the nature of the workplace.
Normally, employers cannot dictate what employees do outside the workplace. However, employers have a legal obligation under the Occupational Health and Safety Act (OHSA) to take reasonable steps to provide a safe work environment for employees.
In many cases, requiring employees to be vaccinated, barring legitimate reasons to refuse such vaccination, will be a reasonable step on the employer's end to ensure a safe workplace. Generally, it will be easier to implement a requirement of vaccination for new hires as opposed to doing so for current employees.
When would it be a reasonable requirement?
The nature of the workplace will be critical. For example, if employees are working remotely, requiring that they be vaccinated is unlikely to be reasonable. However, if employees cannot work remotely, have to interact with the public on a regular basis, and work in close proximity with other workers, mandating vaccines is likely to be a reasonable requirement.
Consider the current debate regarding whether health care workers in Canada should be vaccinated. Some European countries are mandating COVID-19 vaccines for health care workers and there are calls for Canada to implement similar requirements. In the health care context, a COVID-19 vaccination requirement is more likely to be reasonable, especially given that such workers are regularly dealing with vulnerable individuals. That said, individual rights must also be considered.
What would be a legitimate reason to refuse to be vaccinated?
An employee may have a legitimate medical need or a religious belief due to which they cannot get vaccinated. These situations trigger the protected grounds of disability and religion under human rights legislation, such as the Ontario Human Rights Code. Employers are prohibited from discriminating against employees based on such protected grounds and have the obligation to accommodate employees up to the point of undue hardship.
In some situations, the accommodation might be modifying the employee’s role or duties in order to appropriately balance health and safety concerns with human rights concerns. In other situations, the accommodation might be allowing the employee to work remotely or placing them on an unpaid leave of absence.
Either way, employers should not dismiss a request for accommodation without considering options and making a real effort to accommodate the employee up to the point of undue hardship.
There are also privacy concerns that employers should be mindful of. For instance, even if you require employees to get vaccinated, revealing confidential information about which employees have received the vaccine and which employees have not could violate their privacy rights.
Employers should, to the extent possible, designate one individual within the workplace who collects and maintains such confidential information.
If an employee refuses to get vaccinated, can an employer discipline or dismiss them?
Employers will have to handle these situations very carefully, or risk exposure to liability. Where an employee has a legitimate reason to refuse vaccinations, such as a disability or religious belief that prevents them from getting the vaccine, an employer cannot penalize the employee based on the protected grounds.
If the disability or religious belief is even a small part of the reason for the discipline or dismissal, then that would be discriminatory. The employer would have to show that the discipline or dismissal was entirely unrelated to the protected ground.
One way for employers to ensure they can manage the workplace on their own terms while minimizing potential liability is to have proper contracts and policies in place. A vaccination policy that clearly outlines the rules and expectations, as well as the consequences of failing to comply, would help the employer manage the workplace. Employers should ensure such policies are clearly communicated to all employees and implemented in a consistent manner.
The issue of mandating COVID-19 vaccinations within the workplace is complex and new, with competing rights at play. Employers will have to maintain a balance between health and safety, human rights and privacy concerns.
In any event, employers would be wise to ensure they have the proper policies in place to comply with the law as well as maximize their flexibility within the workplace.