Temporary Lay Offs are Not a Problem Free SolutionJune 3, 2020
Trade Names are not a GameMay 4, 2021
As I write this the Alberta Government is expected to ease pandemic restrictions and allow more businesses to re-open. If it does ease the restrictions, it will be a welcome relief. However, looser restrictions are not an excuse to be lax about personal safety. The bug is out there and, while I am no medical expert, I think its fair to expect it is not going anywhere. So, what does that mean for the businesses that are re-opening?
Employers have a duty under the Occupational Health and Safety Act to ensure the health, safety, and welfare of their workers at or in the vicinity of the work site. COVID is a highly contagious virus that can have very severe symptoms – even death – to workers. COVID is a known hazard that can affect almost any workplace, so it is very likely employers have a duty to do something to protect their workers from it. So, what can employers do? They can (and should) implement masking and social distancing measures, require workers to work from home where possible, and, possibly, implement a vaccination policy.
Can a workplace require me to take the COVID vaccine?
The short answer is “yes”, the long answer is “it’s complicated”.
Employers have a duty to keep the workplace safe, and if they do not, they could be fined under public health or safety legislation or sued for negligence. If a COVID-infected worker or their family members dies or becomes permanently ill as a result of the employer’s negligence, the resulting lawsuit could bankrupt the business. For many employers that risk is not worth taking and requiring workers to be vaccinated is a major way to limit the risk, but is it appropriate?
Some workplaces have stronger reasons to require the vaccine than others. Any business where workers interact with the public (like retail) or vulnerable populations (like long-term care homes) have very good reasons to require vaccinations. If an employer in one of those industries requires vaccinations and the employee refuses, the employer may be within their right to dismiss the employee. However, other workplaces where interactions between workers and the public are more limited (like private workplaces), the employer may not be within their rights to set up a general vaccination requirement or terminate people who refuse to be vaccinated. Union workplaces may also have special rules concerning vaccinations that could tip things one way or the other.
Requiring vaccinations creates a conflict with privacy rights and human rights. Requiring workers to disclose their vaccination status raises privacy concerns, as does any requirement that specifies how a worker must use their body and what to do with it. The Alberta Human Rights Act prohibits discrimination on the basis of religious beliefs or disability, and workers who object to vaccinations for religious or medical reasons are entitled accommodation from the employer. Employers can get into seriously hot water for violating workers privacy or human rights, or for wrongfully dismissing employers who object to vaccinations on those grounds. Also, if an employer requires workers to be vaccinated, they may be liable for any reactions caused by the vaccination.
Debate around vaccinations policies is not new. The issue has come up most often in the context of the seasonal and annual flu vaccine. In that context, courts and arbitrators have found mandatory vaccinations to be unreasonable in most industries outside of health care. However, COVID is more deadly and much more contagious and throughout the pandemic the law has increasingly leaned toward safety, so perhaps that may change.
Yes, employers can require workers to take a vaccine, but the better question is should an employer require workers to take the vaccine. Answering that question requires looking at the facts and circumstances of the workplace, and that requires asking several questions:
- What is the level of contact between employees and the public?
- Are there ways to manage COVID risks without requiring a vaccine by using personal protective equipment, social distancing, barriers, or remote working arrangements?
- If a worker objects to taking a vaccine, how will the employer respond to or accommodate the worker?
I suspect that most workplaces outside of retail and healthcare will have some measures they can take to protect the workplace without requiring all workers to be vaccinated. However, some employers will not want to take the risk. Rather than impose a general vaccination requirement, which may expose employers to liability, it is better to start a conversation. Employers could start by offering employees time off to be vaccinated, creating a confidential way to hear objections about the vaccine, and evaluating ways they can manage risk without requiring a vaccine (like having workers work remotely). There are clear and persuasive arguments to be made on both sides of the vaccination issue, so address it carefully with compassion and understanding.
If you’re considering implementing a vaccination policy for your workers, or if you are a worker concerned about your workplace’s vaccination policy, I recommend you consult with your trusted legal advisor for appropriate advice.
Kenneth Taylor helps you navigate the turning points of life. He is an associate with Pritchard & Co. Law Firm LLP. Contact Ken at (403) 527-4411 or at email@example.com