September 13th, 2021
Some Canadian workplaces have decided to make vaccination a requirement for return to in-person work. The reasons for doing so are compelling; vaccines help prevent serious illness from COVID-19 and, as recognized by the BC Human Rights Commissioner, help protect those who are medically vulnerable and who may be at increased risk from contracting the virus.
The federal government has announced that all federal public servants and those working in federal Crown corporations must be vaccinated by the end of October, if not sooner. Here in BC, staff in long-term care and seniors assisted living facilities must also be fully vaccinated by October 12.
No one can force another person to accept a vaccine. However, an employer may require its employees to be vaccinated as part of its duty to ensure workplace health and safety, and may impose consequences on an employee who decides not to receive the vaccine. In creating and enforcing a vaccination requirement, an employer must take care to comply with relevant employment and human rights laws, as well as any employment contracts or collective agreement that may be in place.
The employment law aspects of a mandatory vaccine policy are beyond the scope of this blog post (and beyond the scope of the legal services the BC Human Rights Clinic can provide). Many employment law firms have provided information on this topic, which you can read here, here, and here, among many other online sources.
From a human rights perspective, any workplace vaccination policy will have to account for people unable to receive the vaccine due to a medical condition or sincerely held religious belief. Employers have a duty to accommodate people with these and other protected characteristics. A personal desire not to get vaccinated is not protected by the Human Rights Code. This has been confirmed by the Tribunal in numerous decisions involving the requirement to wear a mask.
An employer’s duty to accommodate an employee who is unable to get vaccinated for medical or religious reasons might include allowing the employee to work from home, testing or mask requirements, or other steps to maintain the health and safety of both the unvaccinated employee and the rest of the workforce.
Employers must take all reasonable steps to avoid negative impacts on employees who cannot be vaccinated for bona fide medical or religious reasons. The employer’s duty ends where those steps create an undue hardship – if, for example, the accommodation would create health and safety risks for others, or would significantly harm the employer’s business. The line between reasonable accommodation and undue hardship is highly fact-specific. Each case will be different. As we have explained in other blog posts, the issue should be approached with flexibility and common sense.
The BC Human Rights Commissioner has provided guidance to employers on developing workplace vaccination policies. These policies can be designed with certain principles in mind that centre human rights. According to the Commissioner, vaccination policies should be evidence-based, necessary, and proportionate to the risks they are meant to address. They should last for the shortest amount of time necessary to achieve their goal, and should protect employee privacy. Employers should also consider the barriers some workers may face in accessing the vaccine, and take steps to help remove those barriers, where possible.