Author: Chris Drinovz, KSW Lawyers ([email protected])
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This has been a hot topic since the news of the first approved vaccine. Can an Employer Require Employees to Get the COVID-19 Vaccine? Please also read our latest article update from August 13, 2021 on this topic here.

Currently, in British Columbia, there is no specific legislation requiring private businesses employees to get vaccinated. However, please note that this could evolve as some federal and provincially regulated employers have started introducing mandatory vaccinations in certain settings.

The short answer to this question is yes, generally non-unionized employers (and in some cases unionized employers) can require employees to get the vaccine (with certain exceptions discussed below). BC Employers have an obligation to ensure the health and safety of all workers in the office or on the jobsite under section 21 of the Workers Compensation Act. WorkSafeBC Policy Item P2-21-1 provides further context on the scope of this duty:

Section 21(1)(a)(ii) reflects that purpose and ultimately requires an employer to ask "Have I done all that I can reasonably do to ensure the health and safety of those other workers?"

Nature of Workplace

Each employer will have to assess its specific workplace and make a fundamental decision as to whether it needs all employees to receive the vaccine or provide a vaccination certificate to make the workplace safer. There may be workplaces where social distancing, wearing masks and washing hands may be determined to be sufficient protection for all or certain departments or areas of the workplace. In some cases outside factors may require vaccination, such as an individual who is required to travel frequently for his/her job, where the individual works in the health care sector or with vulnerable individuals, and where it would be a reasonable expectation the individual maintains the proper vaccinations (including COVID-19). These are considerations for the employer - requiring all employees to receive the vaccine is a fundamental issue that can be controversial and lead to legal action against the employer.

Employers can also consider requiring different work conditions for employees depending on whether or not they have been vaccinated. For example, employees who have not been vaccinated may be required to continue to work remotely, or to continue to complete COVID-19 daily assessments before entering the workplace, maintain distance and wear a mask at the workplace.

Covid-19 Vaccination Refusals and Terminations

Employers can’t physically force employees to get the vaccine, but they can make the COVID-19 vaccination a condition of continued employment. Depending on the nature of the employment and the risk associated with it, certain employers have a stronger case for making the COVID-19 vaccination a condition of employment (e.g hospitals, medical clinics, long-term care, group homes, retail, service industry).

The more interesting question becomes whether an employer can terminate an employee who refuses to get vaccinated against COVID-19. The answer to this is: it depends on the reason for the refusal. If the reason involves a protected ground under the BC Human Rights Code, such as a physical (medical) disability or religious grounds, then the employee may have a human rights claim against an employer who terminates on the basis of the protected ground. However, if the reason is mere personal preference that is unrelated to a protected characteristic, then the employer can terminate an employee, provided they offer the appropriate notice or severance pay mandated by the employee’s written employment contract or in the absence of a written contract, the common law. In the case of unionized workplaces, the employer should pay special attention to the collective agreement in place and seek advice from an experienced labour lawyer prior to terminating or disciplining an employee. Mike Weiler is our labour expert at KSW Lawyers, with over 37 years of experience in labour law ([email protected]).

Examples of protected grounds for refusing to take the vaccine may include:

• A person who has a severe allergy to a vaccine or an ingredient in it;
• A person who has a medical condition, disease or takes medicine that reacts with the vaccine or ingredients in it;
• Based on religious beliefs – belonging to a recognized religious group that objects to vaccines.

Mandatory vaccination is not without precedent in Canada. Some examples of mandatory vaccinations (or mask) policies include public school settings for some provinces and healthcare settings involving mandatory vaccination policies or “vaccine or mask” policies in relation to seasonal influenza. BC has had an influenza prevention policy in place since 2012. The policy requires all healthcare workers to be vaccinated against influenza or wear a mask in patient care areas throughout the influenza season. The policy also applies to visitors, volunteers and students who attend a patient care area.

In an Ontario case Barkley v Mohawk Council, 2000 CarswellNat 3877, a nurse working as a non-unionized employee on a fixed term contract at a federally regulated adult care facility refused to comply with the facility’s mandatory influenza immunization policy on the basis she had never been sick with the flu and had faith in her immune system (reasons not protected by human rights legislation). The employer described the immunizations as a condition of continued employment, and anyone who refused to get the vaccination would be dismissed. At the hearing, the employer led evidence about the risks the flu posed to residents with whom the employee had frequent contact. The Arbitrator ruled that there was a legitimate interest on the part of the employer in the residents’ wellbeing and health. The decision to impose vaccination was therefore not unreasonable and the termination of the employee’s employment was upheld. While this case dealt with the unjust dismissal provisions of the Canada Labour Code, its principle may be applied in provincial cases.

Privacy, COVID-19 Vaccine Policy and Recommendations

Employers should keep in mind that even asking an employee whether they have had the vaccination and requesting proof of vaccination or a vaccination certificate is a collection of personal information/personal health information triggering privacy considerations. Any employer should be mindful of the privacy legislation that applies to them. We also recommend keeping a close eye on the vaccination system that Canada and British Columbia will engage and on balancing the privacy rights of Canadians and public safety during a pandemic.

The employer’s obligation to ensure the health, safety and welfare of its workers must be balanced with the employee's right to privacy. As previously mentioned, employers should evaluate whether implementing a vaccine verification program is integral to providing a safe workplace and ensure that such a program does not unreasonably infringe on an employee's privacy expectations.

Once an employer has made a decision, the employer should consider developing a policy on COVID-19 vaccinations. The policy should contain the following: authority for collection, statement of purpose, statement whether vaccination certificate will be required, statement on possible actions taken based on whether employee is vaccinated or not, statement on storage, sharing and destruction of the information. Our team can assist employers with developing policies.

Some best practices to keep in mind when developing and implementing a vaccine verification program include:

• Determine what information will be requested and minimize the amount of information collected (verbal statement of vaccination sufficient; or ask to show vaccination certificate without making a copy, etc.);
• Determine the purpose for requiring vaccinations and the purpose for requiring a copy of the vaccination certificate (is it to prevent transmission of COVID-19 from employee to employee, or customer, patient);
• Notify employees and maintain open and transparent communication regarding implementation;
• Do not share information regarding names or identity of employees not vaccinated (only share statistical information such as percentage of employees vaccinated);
• Share collected personal information with only those who need to know for the purposes of implementing the vaccine program;
• Keep the information secure and destroy it when no longer needed;
• Seek legal advice as needed.

Takeaways for Employers

• Evaluate your workplace and your workforce to determine whether a (mandatory or optional) vaccination policy is advisable or necessary to meet the company’s obligation to maintain a safe and healthy workplace for all workers and to protect your clients/customers and the public at large;
• When facing an employee who refuses to get the vaccine, be sure to ascertain the reasons for the refusal and evaluate whether any human rights obligations are triggered before taking action against the employee. Consult with an employment and human rights lawyer where not sure;
• Prior to implementing a vaccine program, seek legal advice and review applicable privacy legislation. Consider the above best practices when collecting employee's personal information/personal health information in any vaccine verification program.

Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter or drafting of workplace vaccination policy, please contact Chris Drinovz at [email protected].

Chris Drinovz is an experienced employment and labour lawyer in Abbotsford, Langley, Surrey & South Surrey and Head of the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP). Chris has been assisting local businesses with workplace issues since 2010. His expertise covers all facets of the workplace including wrongful dismissal, employment contracts, workplace policies, and WorkSafeBC matters, including occupational health & safety. Chris is on the Executive of the Employment Law Section of the Canadian Bar Association BC, and a Director for Surrey Cares and Greater Langley Chamber of Commerce.

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