Employers requiring coronavirus vaccinations must consider human rights, privacy

With coronavirus vaccines rolling out across Canada, employers must consider the privacy and human rights implications of requiring vaccinations for their teams, says Shaun Parker, an associate with the law firm Osler, Hoskin & Harcourt.

“In a mandatory-vaccination program, if an employee will suffer adverse effects due to a protected ground, the employer may have an issue. If someone for religious or medical reasons can’t take a vaccination, human rights is squarely engaged. Human rights doesn’t expressly prevent mandatory vaccinations but it does open a Pandora’s box. The main privacy implications are also from a human rights perspective, such as collection of sensitive personal information as a result of the vaccination.”

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Parker says mandatory-vaccination programs will be an easier sell in workplaces and industries where employees and the public are more at risk, such as health care and education. “It comes down to reasonableness and whether the requirement will cause undue hardship.”

Employers are also legally allowed to hold vaccination fairs when vaccines become available for direct procurement, with such events falling under the same legal considerations as annual flu shot programs. “Whether the employer wants to do it or not is more of a business or moral decision. As part of the vaccination program, you’d have an employee- and public-relations strategy where you extol the benefits of the vaccine and why it’s good for workers to get it. But I’d be cautious to require it, especially in the early days, as the vaccine is rolled out. The question is ‘do you want your workplace to be the test case?’”

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As for potential pushback from vaccine-skeptical employees, Parker says employers can mitigate the issue by tying vaccination to the return-to-work process from a workplace safety perspective. By determining why an employee refuses to get vaccinated, employers can aim to avoid any potential legal challenges based on a human rights issue.

“There’s a big difference between someone who says they’re not getting vaccinated for religious reasons as opposed to they don’t believe in vaccinations. You accommodate people to the point of undue hardship where prohibitive grounds are engaged, but you don’t have to accommodate people where prohibitive grounds aren’t engaged.

“There’s going to be a time when employers make a decision on what they’re willing to accommodate, such as whether they’re still willing to have people work from home or employees will be required to be vaccinated or they won’t have a job.”

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