Can My Employer Require Me To Get the COVID-19 Vaccine?

Since governments aren't likely to actually mandate the vaccine (more commentary on that issue forthcoming), the next question is whether or not someone might be required to get the vaccine in order to go to work.

As a preliminary note, I'm not talking about unionized workplaces; different considerations will apply there. This discussion centers on non-unionized workplaces.

There are a range of considerations to look at - the impact of various statutory regimes, context-dependent factors, etc. - but the biggest and most difficult question here will be the 'general' case: In a workplace with no exceptional or extraordinary relevant considerations, is it within the employer's contractual rights to require employees to vaccinate?  I'll come to that last.

The Easier Question: What If I Can't Vaccinate?

There are already cases of people experiencing allergic reactions to the Pfizer vaccine, and so the emerging recommendation is that people with histories of drug allergies shouldn't get it. There are presumably other classes of people who are also medically unable to get the vaccine. And there will plausibly be some with religious objections.

(Let's get this out of the way: There are small religious groups with good faith objections to vaccines, or to medicine in general, but I am not talking about "vaccines cause autism" crowd. If your concerns about vaccination are based on what you've read on the internet about what they do to your health, that's not a religious objection, even though it may be an opinion you hold with religious fervor.)

In this small class of cases, people will likely be able to assert an entitlement to be accommodated under human rights legislation.  However, the entitlement to accommodation is not absolute - it requires that an employer provide only reasonable accommodation up to the point of undue hardship.

There are likely to be scenarios where employers assert, with varying degrees of strength, that keeping an unvaccinated employee in the workplace constitutes undue hardship. For instance, a long term care facility operator may have serious and legitimate concerns about employing unvaccinated nursing staff, given the choice.

To be very clear, refusing to employ LTC nurses who can't vaccinate for medical reasons (or transferring them to other work) is discriminatory, and puts people out of work for no fault of their own. But it would be arguably justified.

Outside of this limited class of cases, however, there's no legal prohibition on an employer discriminating on the basis of vaccination status.

Privacy Questions

It's unusual for employers to even ask about vaccination status. In jurisdictions with privacy protections for employees (though it's worth noting that not all jurisdictions have such legislation), the general rule is that personal information can't be collected for no reason at all.  (Under PIPEDA, for instance, governing federally regulated employees, collection of personal information requires an objectively "appropriate" purpose.)  This isn't a high bar, however, and collecting information about vaccination status during a pandemic, for health and safety purposes, is almost certain to pass any applicable test, such that, again, employers aren't likely to be legally prohibited from insisting on such information.

New Hires and Not-For-Cause Dismissals

So an employer can almost certainly ask about vaccination status, and can almost always discriminate against workers on the basis of vaccination status.

I can think of absolutely no constraint in doing so at the recruitment stage. They need to be careful and cognizant of the possibility of people entitled to accommodation, but that's easily resolved - say, through use of conditional offers of employment.  (You're hired, provisional upon your criminal record check coming back clear and on you providing proof of your COVID-19 vaccination [or evidence of a medical or religious exemption].)

Similarly, an employer is generally able to dismiss employees, upon notice (or pay in lieu thereof), without any reason at all. So if a non-exempt existing employee refuses to vaccinate, or refuses to provide evidence of vaccination, there's almost no question that an employer would be able to dismiss on a not-for-cause basis as a result.

The really challenging question here, which I'll come back to in a minute, is whether or not the refusal by the employee is insubordinate and may justify termination for cause.

A Reversal of the Question: MUST the Employer Require Vaccinations?

There are a couple of bases upon which an employer is required to take measures to prevent transmission of communicable diseases in the workplace.

The first place to look is to occupational health and safety ("OHS") legislation.  Employers have to maintain safe and healthy workplaces.

And there are certainly going to be contexts where OHS obligations arguably extend to mandatory vaccination, but I would tend to argue that this is not universal. It is not the case that all workplaces are obligated to employ only vaccinated personnel; this would effectively amount to a statutory prohibition on unvaccinated persons working at all.

When we have a particular disease that is the subject of countless public health orders and mandatory measures, the decision NOT to extend these measures to a mandatory vaccine will, in my view, preclude an OHS interpretation of an across-the-board requirement for all employers to mandate it instead. It's going to be a context-specific question, instead, but outside of environments with exceptionally high risk, compliance with applicable public health guidelines will almost certainly satisfy an employer's OHS obligations.

The second place you might look is to human rights legislation: Even without a broad OHS obligation to mandate vaccines, it's conceivable that somebody with vulnerabilities to COVID based on age or other medical circumstances might be entitled to accommodation in the form of not being exposed to unvaccinated individuals.

Does the Employer have a Contractual Right to Require Vaccination?

So here's the challenging and interesting question: Having established that an employer can ask employees to get vaccinated and provide proof, is the employer contractually entitled to compliance with those requests, such that refusal amounts to disciplinable conduct, up to and including just cause for termination?

This is not uncontroversial, but my answer is: It depends.

The question to ask is where that contractual entitlement would originate.

The OHS Scenarios

Let's start with the cases where employers have to mandate vaccination for OHS purposes. OHS legislation imposes significant obligations on workers themselves, with parallel implied terms of the employment relationship at common law, and I would tend to conclude that, in cases where the employer owes such an OHS obligation to require vaccinations, that obligation also extends to employees to comply.

There's also a very small contingency, barely worth mentioning, in a case where an employee with identified COVID vulnerabilities wants to return to work in an inherently high risk environment, but doesn't want to vaccinate. An employer, aware of the risk to the employee associated with returning that person to work, may be entitled to require medical clearance.

The Human Rights Scenarios

In cases where the employer's obligations derive from human rights legislation, the answer isn't so simple.  While other workers are subject to obligations under human rights legislation, the duty to accommodate doesn't really apply to co-workers in quite that way.

For instance, if I can't lift more than 5kg for medical reasons, then my colleague isn't entitled to know that, and even if my colleague knows that, it doesn't translate directly into a human rights obligation for that colleague to do all my heavy lifting for me, failing which I'll drag my colleague to the Commission or Tribunal. Rather, my employer owes an obligation to accommodate that restriction, and that accommodation may take any number of forms, including directing my colleagues to do my heavy lifting for me, OR by modifying my job duties in such a way that heavy lifting is no longer required.  Or not - maybe those accommodations would incur undue hardship.

Most importantly, my requirement for accommodation does not change or inform the content of the employment contract between my colleague and the employer. If my employer assigns certain of my duties to my colleague that are within the job classification of that colleague, that's unlikely to be a problem. But if my job includes low-prestige manual labour tasks, and my need for medical accommodation means that the employer assigns the office manager to do those instead, the fact that the employer owes me a duty to accommodate doesn't immunize the employer from a constructive dismissal action by that other employee.

Specifically in the context of an employee seeking medical accommodation in the form of not being exposed to unvaccinated individuals, an employer has options: The employer can close the workplace to unvaccinated individuals; the employer can allow the affected individual to work from home; the employer can provide the individual with a private space with significant spatial and physical barriers from anyone unvaccinated; or the employer might find the request impossible to accommodate altogether.

But in my view, the individual's entitlement to accommodation lies only against the employer; the individual has no entitlement to require a given colleague to vaccinate, and no direct recourse against that colleague for refusing to vaccinate. If I'm right about that, it becomes really tough to argue that human rights legislation ever imposes an obligation on individual employees to vaccinate, such that it would inform the terms of the employment contract.

Elective Adoption By Employers

If the employer owes no obligation that rises to the level of mandatory vaccinations, but the employer mandates vaccinations anyways - because it's good for public health in the community, good for employees, rising above and beyond any statutory obligations entirely - then we're completely outside the realm where employers might look to statutory regimes to say that employees are obliged to comply.

This is what I'll call the 'general' case.

Circumstances don't change contracts. There's no coherent argument to say that the context of the pandemic gives the employer contractual rights that did not previously exist within the contract.  Contractual terms can be context-specific - terms that are only engaged in specific contingencies - but they have to come from somewhere.  While there's definitely an inclination to give employers a bit more leeway in light of the extraordinary circumstances of the pandemic - surely, we don't want to give employers carte blanche to require employees to take whatever injections the employer decides on a discretionary basis, as a term and condition of continued employment, but maybe just this once...? - but the argument required is that, whatever the contractual term may be, it was always there.

So the question is this: Do employment contracts, as a general proposition, include some implied term that entitles the employer to require employees to vaccinate under given circumstances?

And my strong inclination is a hard no: We have a pretty narrow set of circumstances where we're prepared to imply contractual terms, and this simply doesn't fit any of them. It's a brand new question, so you can't argue based on industrial custom. And the other tests, among other things, require necessity - that the contract doesn't function to achieve the aims of the parties without implying such a term.  (As well, any of the 'presumed intention' bases of implication would run into a real problem with the stark and unprecedented invasive nature of the requirement, and any attempt to imply a highly contextualized rule - that employers have this right, but only under these narrowly constricted sets of circumstances - runs into issues of complexity. Lots of problems with trying to imply a term here.)

Thus, my view - though there are likely to be arguments to the contrary - is that if and only if an employer owes an OHS obligation to mandate vaccination, that same statutory obligation extends to employees and they can be disciplined (up to and including termination for cause) for refusing to comply.  In any other case, an employer's termination of an employee for refusing to comply with a mandatory vaccination policy...would have to be on a not-for-cause basis.

Closing Notes

I think mandatory vaccination policies by employers, subject to the aforementioned exemptions, are a great idea. I hope lots of employers do so once vaccine distribution proliferates; that would really enhance our chances of establishing herd immunity.

But, while I wouldn't shed any tears for antivaxxers being tossed out of workplaces without compensation, I am simply not of the view that the common law gives - or should give - that kind of unilateral discretion to employers.

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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.