Vaccine Mandates: An Update

I made an entry about workplace vaccine mandates in December, and another about Alberta's vaccine cards last month.

A lot has changed since then, so it's worth revisiting.

For starters, I continue to stand by my analysis from December, essentially in its entirety: To put it simply, a business is entitled to bar entry to anyone on the basis of vaccination status, subject only to narrow human rights obligations, minimal privacy obligations, and pre-existing contractual obligations (noting that contracts can be breached, but damages may result).

Human rights commissions have started releasing positions that support this narrow view of the obligation: People who are unvaccinated by choice (as distinct from, say, religious or medical requirements) are not entitled to discrimination protection on that basis.

The privacy question has evolved a little bit. I remain skeptical of the joint statement of the Privacy Commissioners from several months ago, but to whatever extent businesses may have had any questions about their ability to justify asking for proof of vaccination, those questions are fully answered for businesses participating in Alberta's Restriction Exemption Program.

But the REP doesn't affect employees. And I haven't talked much about unionized environments. So let's look at this as the nuts-and-bolts reality on the ground that it has become.

Employers: Do You Have A Problem?

My advice to employers has generally been to start with fact-finding. I remain of the view that there's no real privacy problem in an employer asking people for their vaccination status for OHS purposes. Whether or not an employer is entitled to insist on that information...is trickier. But I wouldn't lose sleep over people refusing to tell. Most people who are vaccinated are more than happy to tell you that they're vaccinated - along with what brand of vaccines they received, what side effects they experienced, etc. Even anti-vaxxers tend to be fairly vocal about their beliefs, but in general if someone says "I don't want to tell you", the fair presumption tends to be that they aren't vaccinated.

In a pinch, offering a carrot - say, a modest bonus - for proof of vaccination will get anyone who has been vaccinated to show you that proof. (This is trickier in unionized environments, however.)

And once you have all your data, you'll have a much better idea of whether or not you have a problem with unvaxxed staff. Let's face it: One or two unvaccinated workers can create an issue, but a large department that's predominantly unvaccinated creates the potential for major business interruptions, workplace safety issues, and HR nightmares.

Once you know where you stand, you're in a better position to assess how to address it. That might be a vaccine mandate, or it might be something lesser or qualified.

Vaccine Mandates in Non-Unionized Environments

I covered this question in December in some depth. I don't think much has changed here: I'm skeptical that employers have a contractual right to require vaccination as a term or condition of employment in most circumstances. There may be arguments to the contrary, however, and there may be exceptions.

Practically speaking, I'm hearing a lot of anecdotes of unvaccinated people who respond to mandatory vaccination policies by...getting the shot. I've gotten a number of inquiries from people who are concerned about being excluded from workplaces or businesses because they're not vaccinated, but I haven't seen a lot of people who are particularly committed to it - most of the time, my consultation fee is enough to keep them away.

So while there's certainly some exposure in adopting a "Vaccinate or you're gone" policy, I suspect it's going to be a relatively rare case where employees press the issue and litigate a dismissal claim for it.

Vaccine Mandates in Unionized Environments

This is, really, a very difficult question.

Collective agreements are unlikely to speak directly to the question, and the case law...is of limited assistance. There are existing frameworks of reasonableness for employer measures dealing with flu outbreaks, but COVID is a different beast from the flu.

My expectation is that the flu cases will inform COVID cases in terms of the analytical framework to be applied, but the results will be different. Some employers will be able to unilaterally impose vaccine mandates on unionized staff...and some won't. Whether, when, and how accommodations or alternatives may be required is a separate question.

I anticipate that healthcare settings, LTC settings, and settings with histories of serious outbreaks (like meat processing facilities) will be the high watermark for employers with a strong case for vaccine mandates.

Settings with low-risk demographics and little direct in-person contact, on the other hand, will have a tougher time establishing the requirement.

While the REP doesn't actually require vaccination of employees, I think it strengthens the case for doing so: If the environment creates a sufficient transmission risk that requiring proof of vaccination from customers is mandatory, that bolsters the reasonableness of asking for it from employees. Moreover, the business tradeoff of the REP, for many employers, is that they're losing sales from unvaccinated persons, but hopefully gaining sales from vaccinated people who are more comfortable in a vaccinated-only environment. Having unvaccinated staff in an REP environment is kind of the worst of both worlds, from a sales perspective.

Accommodations and Alternatives

An outright "vaccinate or get out" policy may be a bit harsher than necessary or appropriate in many circumstances.

Other measures, like masking, regular testing, distancing, use of additional barriers in the workplace, or WFH arrangements, might be appropriate to consider.

First off, there's the obvious: People with legitimate religious or medical reasons not to get vaccinated may be entitled to reasonable accommodation up to the point of undue hardship. As I noted in August, good faith religious/medical objections are rare, and the result doesn't necessarily require an employer to treat an exempt person the same as a vaccinated person.

In such a case, the employer's obligation is to assess what accommodations are reasonable. If none are - if the nature of the role and interactions are such that there's just no way of accommodating it - the employer doesn't have to accommodate. Importantly, people don't get to PICK their accommodation. It's not "You have to let me work from home" or "You can't impose other restrictions on me". Employers have to offer reasonable accommodations, where possible.

Secondly, you have unionized contexts where maybe a full ban pushes reasonableness a little bit, but a reasonable rule of "vaccinate or do x" may be of broader application.

Thirdly, in non-unionized contexts, such an approach might insulate an employer against dismissal or constructive dismissal action. While I'm skeptical of an employer's ability to unilaterally make vaccination a term and condition of continued employment, I'm less skeptical of an employer's ability to direct other precautions.

One interesting question that arises for frequent testing requirements, though: Who pays? It can be an onerous expense. My take is this: If the employer is making that alternative available out of obligation (human rights accommodation; a vax-only rule is a bridge too far; trying to avoid constructive dismissal claims), the employer probably has to pay. But in a scenario where the employer could justify a 'vax-only' rule, saying "but we'll let you in if you provide frequent test results at your own expense" may well be okay.

How Unvaccinated Employees Should Respond

In practice here, there's a lot of uncertainty, and for unvaccinated workers, that uncertainty is difficult to navigate.

So while employers and unions are likely to get strategic advice couched in various risk assessments, the advice for employees facing an employer attempt to implement a vaccine mandate is generally going to be simpler: Just get the shot.

This isn't about moralism, but about interests: If you're a unionized employee, you have one narrow window to get front-end certainty: Convince your union to grieve the policy and seek an expedited hearing before the policy is effective. If they won't do that, there's probably not much you can do about it.

Outside of that one narrow case...if you refuse to comply with the policy, and get discharged as a result, then you might have processes available to challenge that discharge, but there's no certainty of winning, and even if you do, what you win is (in a union) the right to keep your job as if you were never fired or (outside of a union) compensation for the dismissal without notice (but you're still out of a job). If you lose, your job is gone and you get no compensation for it.

So unless there's a serious reason that you really can't get the shot, your objectively best result here is the one where you avoid getting fired at the front end. If your objections are so strong that you're willing to roll the dice, do so knowing that you almost certainly won't come out ahead for it.

Concerns about the REP

I find the structure of Alberta's vaccine mandate...weird. Because it's not actually a mandate, generally.

Most businesses can abide by a set of onerous restrictions, OR they can voluntarily require proof of vaccination from their customers. For most eligible businesses, this is something of a no-brainer, given that the limits on their services would be difficult to navigate, so most eligible places are just going with the REP. 

There's a problem with that, from a business perspective. If the government says, as a matter of law, that you must obtain proof of vaccination, that doesn't leave much room for somebody to say that they have a contractual right to enter without doing so. But if it's a voluntary measure, then that leaves open an issue, in some cases, that the people excluded may be denied a service to which they have a pre-existing contractual entitlement. For example, if I have a recreational club membership for which I've prepaid on given terms, under the terms of the restrictions themselves I'm still fully able to take part in my usual activities at the club, but the club decides to participate in the REP (because many of its activities are affected by the restrictions), then, if I'm not vaccinated, denying me entry is hard to justify under a contractual rubric.

The government's approach here is shockingly anti-business, leaving open that exposure against people without vaccines.

I suspect that Calgary's by-law, making the REP measures mandatory for eligible businesses, fixes this problem.

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Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.

This post does not contain legal advice, but only general legal information.  It does not create a solicitor-client relationship with any readers.  If you have a legal issue or potential issue, please consult a lawyer.