The National Magazine by the Canadian Bar Association published an article called “Insist or accommodate?” by author Carolynne Burkholder-James, a lawyer with Marcotte Law in Prince George, B.C. In this article, Carolynne asks several employment lawyers about their thoughts on employers imposing mandatory vaccine policies in the workplace. The full article is here.
I was asked specific questions including what would happen when an employee refuses a vaccine under such a policy, and what employers should think about when employees do refuse. The short answer is: all parties must be aware of their human rights obligations (both employers and employees!), and keep privacy concerns front and centre. Here is an excerpt of the article:
What if an employee refuses? Jason K. Wong, a Toronto-based employment lawyer, says that employers need to be cautious in demanding that their employees show proof of vaccination. “It’s best to have that open dialogue to understand employee concerns and make sure that employers are relaying why they are thinking about vaccination policies,” he says.
Employers need to be “mindful of the human rights element to this,” he adds. “Under the Human Rights Code, an employee is within their rights to refuse to take the vaccine for religious or medical reasons.” That means the employer should take an accommodation request made by the employee seriously “and do their due diligence in making sure that accommodation need is met.”
Employers can inquire why the employee does not want to take the vaccine. “If it’s for religious reasons or medical reasons that can be proven and documented, those should absolutely be taken seriously on a case-by-case basis,” he says. “But if you have an employee who says, ‘I don’t believe in vaccines,’ well, that is not good enough in my opinion. That does not meet the threshold of criteria under the Human Rights Code.”
If an employee refuses to get the COVID-19 vaccination, Wong says an employer may choose to find an alternative way to address their concerns -- for example, social distancing and use of masks.
He says that it would be unlikely that an employer could dismiss an employee with cause for refusing a vaccine and would likely have to provide notice of termination.
If you require legal advice on employee or employer obligations regarding COVID-19 vaccines in the workplace, please contact Jason Wong. Jason is a Toronto Employment Lawyer practicing exclusively employment, labour, and human rights law. You can contact Jason at jason@wongemploymentlaw.com or 647-242-5961.