Fierce debates are taking place regarding the mandatory vaccinations that are being implemented in response to the COVID-19 virus. It was not very long ago that the balance between employee privacy versus safety was hotly contested regarding random alcohol and drug testing. There is an argument that the implications of mandatory vaccinations are far-reaching and more intrusive.
British Columbia and Quebec recently became the first provinces to institute “vaccine passports”, requiring individuals to provide proof of vaccination to attend a wide range of social activities. The Calgary Flames and Calgary Stampeders have announced that all fans and employees will need to be fully vaccinated in order to attend games at Scotiabank Saddledome and McMahon Stadium. Vaccine requirements for students and professors have also been a contentious topic at many Canadian universities as they approach the return to campus this September.
In the workplace, the federal government has announced that vaccinations will be mandatory for all public employees, including those employed by Crown corporations and in some federally-regulated industries. Several employers in both the public and private sector have followed suit, including Porter Airlines, most major banks, and the Town of Banff.
This begs the question: can private companies in Alberta legally require their employees to be vaccinated? Obviously, employers cannot physically force their employees to get vaccinated. The legal question at play is whether employers are legally allowed to terminate an individual’s employment, or discipline them in any way, if they refuse to provide proof they have been vaccinated.
This question does not have a simple answer. The legality of a vaccine mandate will depend highly on the nature of the company, the individual circumstances of the employee, and the precise terms of the policy being put in place.
Mandatory vaccination policies place in conflict two competing priorities: (1) the rights of each individual employee to privacy, autonomy, and freedom from discrimination; and (2) the employer’s obligation to provide a safe and healthy workplace for all employees, under occupational health and safety legislation.
Many people mistakenly believe that their Charter rights would prevent any vaccine requirements. In the case of private employers, this is not the case. The Canadian Charter of Rights and Freedoms applies only to government actors—it does not apply to the actions of private individuals or corporations.
Nevertheless, private companies are still subject to other applicable laws, including privacy and human rights legislation. Under section 7 of the Alberta Human Rights Act, employers are prohibited from discriminating against employees on the basis of several protected grounds, including but not limited to physical disability and religious beliefs. If an employee refuses to be vaccinated on the basis of a protected ground, the employer does have the duty to accommodate them to the point of undue hardship. If a company refuses to accommodate an employee, this may leave them vulnerable to a discrimination claim.
In most industries, it will be very difficult for employers to demonstrate that they should not be required to provide accommodation.
Even if the employee does not have a protected ground for refusing the vaccine, employers may face a claim for constructive dismissal if the employee was not terminated but “forced to resign” due to the circumstances. When employees are hired, they agree to work pursuant to certain policies and procedures. Marked changes to these policies and procedures, such as mandatory vaccinations, could be seen as a unilateral change to the employment agreement and a “breach of contract” by the employer. This could result in a claim by the employee for termination pay.
Companies should be implored to make best efforts to accommodate the individual through alternative measures. Any accommodations put in place should not be met with decreases in pay or other disciplinary measures as this will heighten the risk of a successful discrimination claim.
In addition, companies who require proof of vaccination and collected medical records must adhere to privacy legislation. Specifically, such information must be collected in the least intrusive manner possible; it should only be used for the company’s stated purpose; and if copies are obtained, they should be stored securely and then destroyed as soon as they are no longer needed.
Mandatory vaccination requirements are a novel and complex legal issue that will be highly contingent on individual workplaces and evolving circumstances. If you require assistance navigating the legal implications of a mandatory vaccine policy in the workplace, as either an employer or an employee, please contact our team of professional employment lawyers who can provide you with sound advice that is specific to your situation.
By Getz Collins and Associates - Employment Lawyers in Calgary & Strathmore