With the COVID-19 vaccine rolling out across the country there have been a lot of questions. At first people were concerned about its safety and the manner in which it’s being distributed. Now there’s concern about backlash or injustices people might face for not getting vaccinated. The concern is can employers enforce the COVID vaccine?
Many people understand the logic presented with the vaccine, to slow the spread and bring an end to the pandemic; the more people vaccinated, the better. Businesses also see the benefits of the vaccine, the more people who can continue working at the office, the more productive their team is. Unfortunately, it’s not that simple.
There is currently no case law or legislation in Ontario that specifically answers the question: can employers enforce the COVID vaccine? Provincial governments do have the power to order mandatory vaccination, so far it doesn’t seem that Ontario will do so. That leaves employers and employees wondering what can organization require of their employees?
CURRENT VACCINATION LAW
Our provincial government does have legislation requiring vaccines in different circumstances. For example, the Long-term Care Homes Act has a staff immunization program in accordance with evidence-based practices. Another example is the Child Care and Early Years Act, where employees are required to meet the local public health immunization guidelines.
Both these examples though have employees working in vulnerable populations and are for the most at-risk communicable diseases such as polio and measles. The flu is viewed differently though. There have been several cases in Ontario where hospitals tried to enforce their staff to receive the flu vaccine or wear a mask to work if not vaccinated. In each case, the employer’s policy was found to be unreasonable and was rejected because:
1. There was no scientific evidence proving masks prevent the transmission of the flu.
2. There wasn’t enough evidence of asymptomatic transmission of the flu.
3. The vaccine wasn’t even close to being 100% effective when administered.
APPLYING THESE STANDARDS TO COVID-19
We know a lot more now, about the flu now, including the flu vaccine, and the power of masks. That means it’s likely the current vaccination standards, including the three reasons above for rejection would not apply:
1. We now know the significance of masks in preventing the transmission of the flu.
2. Asymptomatic transmission is proven for COVID.
3. The COVID vaccines can be up to 95% effective, much more than the flu vaccine.
Additionally, COVID has proved to be far more severe than the flu, especially for the vulnerable populations. These facts tell us that it’s likely a mandatory COVID-19 vaccination policy will be upheld in many workplaces. However, until there are court or arbitration decisions made, specifically on this point, no one can say for certain what employers will decide and how their decision will be protected.
CONSIDERATIONS ENFORCING A VACCINE POLICY
The COVID vaccination is seen as an invasive medical procedure. Therefore, without guidelines from Ontario law, employers will need to seek sound legal advice to make informed decisions. Employers must weigh their employees’ rights with privacy, against an employee’s rights to safety in the workplace. This is a tricky decision.
In order to build a mandatory vaccination policy, organizations should take in these considerations:
– Privacy rights disclosing whether an employee has or has not been vaccinated.
– Employees religious beliefs that prohibit vaccination.
– Proving why alternatives such as physical distancing and mask-wearing aren’t enough.
– A discipline program or consequences for employees who don’t comply.
– Realistic safety concerns posed by COVID in the workplace.