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The vaccination debate has been raging over the last few months. Scientists, doctors, parents and even celebrities have shared their pro and anti-vaccination stances. The “anti-vaxx” controversy has revolved mainly around school-age children and their vulnerability to long-dormant diseases, however the controversy is also salient for employers in the broader workplace context.
Last week, a colleague asked me whether an employer can make vaccination a condition of employment. The quick (and lawyerly) answer is “yes, but…” In short, an employer can make almost anything, including vaccination, a condition of employment in the name of workplace safety, but the employer must be able to justify the condition while still meeting its duty to accommodate pursuant to applicable human rights legislation.
In certain workplaces, including hospitals, employees are required to have up-to-date vaccinations against specified diseases. In a healthcare setting, the justification for such a requirement is clear – worker and patient safety in a high-risk environment. Recently, some Canadian hospitals have attempted to enact mandatory flu vaccination requirements, but some of the unions representing nurses and other hospital workers have objected. The unions argue, amongst other things, that these policies violate the employees’ human rights. For example, an employee who has a chronic health issue may be unable to be vaccinated but, because of the policy, will face negative employment consequences, such as suspension or dismissal. On that basis, the unions argue, mandatory vaccination policies are discriminatory and can only be implemented where vaccination is a “bona fide occupational requirement.”
How can employers enact mandatory vaccination policies but avoid human rights sanctions? While every workplace is different, employers should adhere to the following general guidelines when enacting such policies:
- Consider the basis for the policy. Maintaining a healthy workplace is a noble purpose, but employers should consider whether mandatory vaccination is necessary and reasonable in their particular organizations before enacting such policies. Specifically, they should ask: is there a unique or heightened risk that affects these employees or the patients, clients or customers of this organization? If employees are not working with vulnerable people, such as people with illnesses, the elderly, or children, there may be no real justification for the policy.
- Draft a nuanced policy. Employers should not use a “cookie cutter” vaccination policy. Consider the following: Does the policy apply to new hires or all employees? What types of vaccinations are required? What is the time period for compliance? What are the consequences for failing to comply with the policy? By enacting a broad policy that applies to all employees and imposes discipline without regard to workplace and employee-specific circumstances, a human rights tribunal or arbitrator may strike down the policy because it has the potential to be discriminatory. Generally, the more narrow and well-reasoned the policy, the less likely it is to run afoul of human rights legislation.
- Brainstorm accommodation options. If an employee cannot be vaccinated because of a disability or his or her religious beliefs, which are protected grounds under human rights legislation, the employer should consider whether accommodation is appropriate and, if so, what reasonable alternatives are available. For example, in some hospital settings, the vaccination policy permits employees to make a choice – they can either (a) receive the flu shot or (b) wear a surgical mask when providing treatment. If there is a reasonable alternative to being vaccinated that achieves the same outcome (i.e. it maintains worker and patient safety), employers should offer that alternative to employees.
Decisions about vaccinations, as with other decisions about healthcare, can be deeply personal. In order to maintain good employee relations, employers should only enact mandatory vaccination policies after careful consideration about the reasons for doing so and while keeping human rights obligations top of mind.
About the Author: Toronto Employment Lawyer Jennifer Heath is an enthusiastic lawyer who is dedicated to improving the health and productivity of her clients’ workplaces. Jennifer advises clients on a wide range of common law, contractual and statutory obligations, including those obligations under the Employment Standards Act, 2000, Labour Relations Act and the Human Rights Code. Her work also involves representing clients before the Superior Court of Justice, the Small Claims Court, the Human Rights Tribunal and the Ontario Labour Board.