It’s unlikely that an employer can require vaccinations unless the workplace’s other measures are deemed insufficient, and the safety of the workers and public is at stake (i.e., bona fide occupations, such as first responders, hospitality and health care workers).
Though employers cannot demand or mandate Covid-19 vaccines, it is their right to request employees be vaccinated. However, they cannot enforce nor penalize employees who refuse to do so.
In certain circumstances, employers can impose restrictions on non-vaccinated employees, such as restricting site access, tasks performed, contact with other groups within the work environment and the public (more on this topic below). The legality of the application of such restrictions is on a case-by-case basis and would depend on the organization’s functions and services.
Employers who decide to pursue a requirement for Covid-19 vaccination should make sure it doesn’t conflict with any existing contracts or collective agreements, that there are available vaccines, and that no less intrusive methods are sufficient. After these considerations, employers should make it a policy of the organization, include it in employment agreements, and always allow for human rights accommodation.
These policies should:
- Be reasonable and fair
- Be clearly drafted and communicated to employees and other stakeholders, like unions or contractors
- Set clear expectations, rules, and consequences of breach
- Deal with discrimination, as they may have valid medical, religious, or other reasons not to comply.
Offer accommodations such as:
- the option to vaccinate or wear a mask and be tested regularly
- The opportunity to work from home (where possible)
- Assigning employees to different tasks
- the option to take a leave of absence without pay or to use vacation/banked time
Covid-19 is unique, and arbitrators have acknowledged that it is far more contagious and lethal than other viruses like influenza. There are many uncertainties as scientists continue to understand its symptoms, transmission, and long-term effects. Furthermore, the duration of the vaccine’s effectiveness is unknown, and the appearance of new strains threatens the possible evolution of a variant not covered by the existing vaccines.