The issue of employers imposing vaccines in a global pandemic context is unprecedented. Employers will be faced with the difficult challenge of ensuring a safe work environment, without the power to mandate that their employees be vaccinated.
Federal and provincial government officials have said that the coronavirus vaccination will be voluntary. Assuming the absence of government directives requiring mandatory vaccination, a true vaccination mandate will be plainly unlawful.
The best employers can do is make vaccination a condition of entry into the workplace, imposing a loss of work (and pay) on those who chose not to be vaccinated. This option will only be available to certain employers in certain circumstances — circumstances in which safety grounds justify the intrusive impact of this approach and in which there are limited alternatives.
Most employers will be legally constrained from doing any more than encouraging employees to vaccinate and, when they can, facilitating access to vaccines. The most current model will resemble the annual flu shot campaigns adopted by many employers in the past. No employers should treat vaccination as a prompt reason to jettison other controls such as masking, distancing and sanitization.
In this regard, it’s important to keep in mind that employers have a responsibility to maintain a safe workplace and reduce the risk of transmission. If found liable, they could face stiff fines under workplace health and safety and emergency measures legislation.
We are at an encouraging time. The early availability of a safe and effective vaccine should hopefully encourage voluntary vaccination in the general population. Employers will play an important role in the adoption of vaccination but should proceed cautiously.
Daniel Michaluk is partner at Borden Ladner Gervais LLP.