By Ryan Conlin, Jeremy Schwartz, and Daniel Gaspar
The last several weeks have seen the first round of COVID-19 vaccines arrive and be administered in Canada. As we enter 2021 and look forward to the approved vaccines being available to the general public, employers eager to resume pre-pandemic life may no doubt be wondering if they can require their employees working in-person to be vaccinated.
Like much of everything else related to the COVID-19 pandemic, the issue is a novel one in the broader context of a situation unlike anything seen before in our lifetime. The enforceability and risks of such a policy vary depending on whether an employer is operating in a unionized or non-unionized context, with human rights and sector-specific occupational health and safety implications transcending both spheres.
That said, like many new challenges that employers faced in the early stages of the pandemic, guidance can be distilled from existing legal principles and case law. The objective of this article is to identify the risks associated with imposing a mandatory COVID-19 vaccination policy and the framework through which those risks may arise, and to provide guidance for employers considering whether to implement one.
“Management rights” generally provide employers with residual authority to unilaterally implement policies not inconsistent with express provisions of the collective agreement. Of course, unions may grieve that the policy, or the process of developing and implementing the policy, violate the collective agreement. Generally, to prevail, employers must satisfy what is known as the “KVP test”, which requires that a policy, development, and implementation must:
- not be inconsistent with the collective agreement (or be otherwise unlawful);
- not be unreasonable; and
- be brought to the attention of the affected employees.
Regarding a mandatory COVID-19 vaccination policy, the most contentious KVP requirement will likely be whether the policy is “reasonable”. Whether a policy is reasonable is determined on a case-by-case basis, with particular regard to the nature of the workplace and the work performed.
While arbitral case law has seen several “vaccinate or mask” policies challenged within the last decade, arguably the most relevant decision for the purpose of a COVID-19 vaccine discussion is the very recent case of Christian Labour Association of Canada v Caressant Care Nursing and Retirement Homes Ltd, which involved mandatory COVID-19 testing.
The union had challenged the reasonableness of a policy requiring all retirement home staff to be tested for COVID-19 every two weeks. After reviewing the tragic impact COVID-19 has had on retirement, nursing, and long-term care homes in Ontario as well as the consequent preventative measures enacted by the Ontario government, the arbitrator held that the policy was reasonable and valid under the KVP test. Most importantly, the arbitrator noted that the privacy intrusion caused by regular COVID-19 testing was outweighed by its objectives — mitigating the spread of COVID-19 in an environment in which an outbreak would continue threatening a vulnerable population.
Any mandatory COVID-19 vaccination policy would likely be scrutinized in a similar balancing act — weighing the privacy implications of a mandatory vaccine policy against the objective of stopping the spread of COVID-19 in the workplace both for the benefit of the public and, pursuant to occupational health and safety legislation (“OHSA”), employees.
That said, mandatory vaccination against COVID-19 gives rise to far greater privacy concerns than mandatory COVID-19 testing. Accordingly, it will be difficult for an employer to claim that a mandatory COVID-19 vaccination policy is reasonable given the effect the policy would have on an employee’s bodily integrity and decision-making. This will particularly be the case if there has been no evidence of the spread of COVID-19 in the workplace due to less drastic COVID-19 safety protocols being in place, such as social distancing and masking requirements.
The bottom line is that an employer must likely have a compelling and pressing need to successfully implement a mandatory COVID-19 vaccination policy. Unionized employers, especially those outside the long-term care and other healthcare settings, will likely find greater success with mandatory “vaccinate or mask” policies than one requiring vaccination for all employees not medically or religiously excused.
Non-union employees, of course, cannot simply litigate a grievance concerning a mandatory vaccination policy based on the KVP test. Instead, they must either: (i) weave a relevant policy into the circumstances supporting a claim of wrongful dismissal or frame their objections under the rubric of (ii) human rights or (iii) the OHSA.
- Wrongful Dismissal
There are essentially two ways that a mandatory COVID-19 vaccination policy may relate to a wrongful dismissal claim: employees may claim that implementing such an onerous policy amounts to a constructive dismissal, or employees may claim wrongful dismissal after they are terminated for cause due (at least in part) to their unwillingness to vaccinate.
a. Constructive dismissal
Imposing a mandatory COVID-19 vaccination policy on an existing employee may trigger a constructive dismissal if arguably the employer is unilaterally introducing a substantial new term and condition of employment affecting the core of the contract.
If the right to impose a mandatory COVID-19 vaccine policy is not authorized by an employee or by the employment contract, the question whether such a policy would trigger a constructive dismissal turns first on whether such policy constitutes a substantial change to an essential term of employment. In our view, the answer to that question is almost certainly yes. As a requirement that affects an individual’s bodily integrity and decision-making, imposing a mandatory COVID-19 vaccine policy would likely constitute a substantial change to an essential term of employment given the privacy concerns associated with what is effectively a ’forced’ vaccination. Thus, absent a contractual right to implement such a policy, in most cases, doing so would likely trigger a constructive dismissal (should an employee elect to treat the employment contract as terminated).
Whether such a policy has been imposed unilaterally depends on whether the requirement is agreed to by the employee or, more commonly, whether the employment contract provides the employer with the right to create the requirement. As virtually no employment contracts contain express provisions granting the employer the right to impose such a policy, a key issue will largely become whether the right exists as an implied term.
The strongest argument for this right being implied by law is likely found in the OHSA which, among other things, requires an employer to take every precaution reasonable in the circumstances to protect a worker. This includes not only the worker who must take the vaccine, but also co-workers and workers of third parties with whom they come in contact.
Whether this general duty creates an implied right to impose a mandatory COVID-19 vaccination policy will be determined on a case-by-case basis. In many workplaces, it may be that a mandatory policy is not a “reasonable precaution”; as it may be seen rather as a disproportionate response to the risk of COVID-19 spread (given masking and other available alternatives).
Like in the unionized context, a finding that the employer has no such implied right will likely hinge on the particular workplace and whether there has been a history of transmission and infection in the workplace. Where there is no evidence of transmission or infection in the workplace (given the implementation of less drastic COVID-19 safety protocols), it is less likely such an implied right would be found. Conversely, in workplaces necessitating in-person work performed in closer confines and where standard, alternative precautions are less effective, a mandatory COVID-19 vaccination policy may be a reasonable precaution in the circumstances, particularly if the workplace experienced a previous COVID-19 outbreak or if the consequences of transmission in that workplace would be more severe.
The bottom line is that the likelier the spread of COVID-19 is at a workplace, despite preventative measures, the likelier a mandatory COVID-19 vaccination policy would be deemed a reasonable precaution. In turn, this would make it likelier that the employer had the implied right to impose a mandatory COVID-19 vaccine policy. In such cases, the implementation of a mandatory COVID-19 vaccine policy would not be done “unilaterally” so as to form the foundation for a constructive dismissal claim.
b. Termination for cause
It is unlikely that an employer would have cause for termination in respect of employees who refuse to vaccinate in violation of a mandatory vaccination policy. Cause for termination exists where an employee’s behaviour is fundamentally incompatible with the employment relationship. Whether imposing termination for cause is a just and proportional response depends upon a contextual analysis of all relevant circumstances, including mitigating factors (like valid concerns employees have about the efficacy and safety of the vaccine and their right to decide what they inject into their bodies). In our view, only in unique situations would an employer have just cause for such a policy breach.
That is not to say that an employer would be prevented from terminating employment without cause. Subject to certain statutory exceptions in some provinces (e.g., in Nova Scotia, where employers face restrictions on their ability to terminate employees with long service), so long as human rights or similar factors are not operative, an employer may generally terminate employment for any reason without cause by providing applicable statutory, common law and/or contractual notice obligations (or pay in lieu). However, given the potential human rights implications surrounding a mandatory COVID-19 vaccination policy, employers would be well-advised to seek legal counsel before taking that step.
Human Rights Implications
Regardless whether a workplace is unionized, human rights legislation in all Canadian jurisdictions (collectively, the “Code”) protects against certain forms of discrimination in employment. A mandatory vaccination policy is not in itself discriminatory because there is no prohibited ground under the Code directly relating to an individual’s decision to receive or refrain from receiving medical treatments or services such as a vaccination. Accordingly, like any other employment-related decision or term of employment, an employee’s refusal to comply with a mandatory COVID-19 vaccination policy must invoke a prohibited ground of discrimination in relation to the policy.
Of those grounds, a mandatory vaccination policy is most likely to invoke creed or disability. Roughly, “creed” refers to an individual’s religion or deeply held system of beliefs. Meanwhile, while perhaps readily discernable in most cases, “disability” is a fluid, relational concept focused on whether one’s physical or mental characteristics are such that the individual could experience a limitation of opportunities relative to others in society who do not share those physical or mental characteristics.
An excellent example of how a mandatory vaccination requirement interacts with the Code is Ataellahi v Lambton County Emergency Medical Services Department, which case involved a paramedic employee, Mr. Ataellahi. Mr. Ataellahi alleged that, among other things, his employer discriminated against him on the basis of creed because it refused to schedule him work during the 2010–11 winter influenza outbreak because he refused to receive the season’s influenza vaccine. Mr. Ataellahi said that it was unnecessary for him to be vaccinated. He said that he had studied medicine and was aware of the “advantages and disadvantages” of vaccines. He also claimed that he was a “healthy” adult and that there were other “respiratory outbreaks” throughout the year against which his employer did not require him to be vaccinated.
The Human Rights Tribunal of Ontario dismissed Mr. Ataellahi’s application because he was grounding his refusal to be vaccinated not on creed or another prohibited ground of discrimination, but on “medical considerations”, which is not a prohibited ground under the Code.
The bottom line is that should an employer impose a mandatory COVID-19 vaccination policy, while some human rights-based objections may ultimately prove baseless, all objections should be meaningfully explored on a case-by-case basis pursuant to an employer’s obligations under the Code. Legitimate objections must be accommodated short of undue hardship, which itself requires an individualized inquiry and cooperation between an employer, employee (and union, if any).
Employers can join us for our Quarterly HR-Law Roundup, a complimentary webinar this January 15, where we will discuss pressing issues facing employers in 2021.
The damage which the COVID-19 pandemic has done, and the risk of harm it continues to pose, cannot be overstated. Absent clear guidance on this fundamental issue facing employers this may lead, without hyperbole, to deadly consequences – not just unnecessary litigation. It remains possible that the government will provide a legislative response to this issue. We have already heard from certain leaders that access to some venues, businesses, and services may be denied to those who fail to vaccinate (and have no valid exemption). The U.S. government has already made it clear that employers can require employees to be vaccinated. We shall see if Canadian jurisdictions follow suit. Hopefully, Canadian employers receive guidance sooner rather than later.
For more information, please contact:
Ryan J. Conlin at [email protected] or 416-862-2566
Jeremy D. Schwartz at [email protected] or 416-862-7011
Daniel C.F. Gaspar at [email protected] or 416-849-2552