By order of the Provincial Health Officer, as of September 13, 2021, British Columbians are required to demonstrate proof of vaccination to access several events and services. In the wake of this announcement, many employers and employees are left wondering whether their workplace will be able to implement similar requirements for employees to have had the vaccine.
Employers have a duty to provide a safe workplace. In addition, employers are generally at liberty to introduce policies as they see fit, so long as the policy does not infringe on an individual’s human rights or privacy interests. Whether an employer can require a vaccine as a condition of employment will therefore involve balancing the employer’s workplace health and safety obligations with human rights, privacy, and other considerations.
Do employees have legal recourse against an employer who implements a vaccine requirement policy?
Where a vaccine is required by an employer, those employees who are unable to receive a vaccine for reasons protected by the B.C. Human Rights Code must be accommodated for, to the point of undue hardship. In B.C., the protected grounds under the Human Rights Code include race, colour, ancestry, place of origin, religion, family status, marital status, physical disability, mental disability, sex, age, sexual orientation, political belief, and conviction of a criminal or summary conviction offence unrelated to the individual’s employment.
An individual’s preference alone is not a protected ground. Notably, in July of 2021, the B.C. Human Rights Commissioner issued a non-binding Policy Guidance in relation to mandatory vaccines, in which it stated the following:
“In my view, a person who chooses not to get vaccinated as a matter of personal preference—especially where that choice is based on misinformation or misunderstandings of scientific information—does not have grounds for a human rights complaint against a duty bearer implementing a vaccination status policy.
In other words, employees who do not fall under a protected ground do not need to be accommodated for and will not be likely to find recourse under the Human Rights Code.
Another consideration for employers is whether requiring a vaccine would violate employee human rights on the basis of perceived disability. Perceived disability is where an individual is assumed to have a disability and is treated accordingly. The potential argument against required vaccination in this regard is that an employee is assumed to be likely to contract COVID-19, which could be considered a perceived physical disability. However, whether this argument is defeated where the vaccine requirement is a preventative measure taken in the face of evidence of the risk of transmission in a particular workplace (rather than a reaction based on mere assumption of disability) remains to be determined.
What if an employee who does not fall under a protected ground refuses to be vaccinated?
Employers cannot physically force an employee to be vaccinated. However, where a clear, well-known, and well-enforced vaccine requirement policy is in place and the employee fails to comply, the employee may be terminated for just cause. An alternative is to terminate the employee without cause by providing appropriate notice and/or severance. Employers can terminate an employee without cause for nearly any reason, so long as the appropriate notice and/or severance is provided, which makes this option significantly less risky from a legal standpoint. If you are considering terminating an employee, whether with cause or without cause, it is advisable to seek legal advice.
What if an employee does fall under a protected ground?
If an employee has a characteristic that falls under a protected ground, the employer must either accommodate the employee, or show that the vaccine is a bona fide occupational requirement. The BC Human Rights Tribunal is likely to engage in a three-step analysis to determine whether a vaccine is a bona fide occupational requirement. To be legally defensible, an employer must show that the vaccine requirement is:
- adopted for a legitimate job-related purpose;
- adopted in an honest and good faith belief that it was necessary to the fulfillment of that purpose; and
- reasonably necessary in order to accomplish that purpose. To do this, the employer must show that it is impossible to accommodate unvaccinated individuals without imposing undue hardship on the employer.
The first two steps will be met by most Employers. Given that employers have an obligation to provide a safe workplace, the purpose that is both legitimate and rationally connected to the job will be workplace safety. In some workplaces, particularly in service or healthcare positions, another valid purpose may be public health and safety. Once a legitimate and rationally work-related purpose is established, the employer will simply need to have an honest and good faith belief that the vaccine was necessary to achieve that purpose. There is no need to demonstrate that this belief is reasonable or correct at this stage of the analysis.
The third step may be more challenging for employers, as it will depend on the characteristics of the particular work setting, the job, and the employee. Under this stage of the analysis, the employer must show that the requirement is in fact reasonably necessary to achieve workplace safety or another legitimate and work-related purpose.
For a vaccine requirement to be necessary, the employer would likely need to show actual risk of transmission in the specific work setting. Employee vaccines are more likely to be enforceable in high-risk situations, such as among employees who regularly interact with the public, work closely with coworkers, or who interact with individuals who are most vulnerable to the effects of COVID-19, such as the elderly. Any vaccine requirement policy would need to be consistently updated to align with current conditions and risk, as well as public health orders and recommendations.
For a vaccine requirement to be reasonable, it must be proportionate to the risk it seeks to address. If alternatives are available to sufficiently prevent the transmission of COVID-19 in the workplace (such as remote work), it is highly unlikely that a vaccine requirement would be justified as a bona fide occupational requirement.
Finally, when a protected ground is engaged, employers must make every effort to work with the employee to accommodate their specific concerns, to the point of undue hardship. What constitutes undue hardship is different for every employer, but may include significant financial burden, or health and safety risk. Possible accommodations may include requiring the employee to work remotely, or to wear a mask in the workplace.
Privacy
Employers must also protect the privacy of their employees in accordance with all applicable privacy laws. Employers should endeavour to collect as little private medical information as possible in order to achieve their objective.
Given the obligation to provide a safe workplace, it will generally be reasonable for an employer to ask for confirmation of the employee’s vaccination status. In doing so, the employee’s privacy must be protected in accordance with all laws.
In most cases, it is reasonable for an employer to request an employee to provide a doctor’s note indicating the employee’s restrictions and abilities when it comes to accommodation for a protected ground such as mental or physical disability. It is rarely reasonable for an employer to request the employee’s specific diagnosis.
What if an employee suffers a reaction, injury, or death from a vaccine that was required by the employer?
If the vaccine was a mandatory requirement of employment, and the employee’s injury was a result of the vaccination, the employee may have grounds for a complaint through WorkSafeBC. WorkSafeBC considers a vaccine to have been a requirement of employment if it is required as a condition of continued employment, if it is not a condition of employment but without the vaccine the employee would not be permitted to continue working if there was an outbreak in the workplace, or if the employee reasonably concludes that the vaccine was necessary despite the employer’s evidence that the vaccine was not compulsory (for example, in a high risk workplace, or where the employee was strongly encouraged to receive the vaccine). Employers should keep this in mind when taking steps to encourage vaccination among employees.
Conclusion
If you are an employer seeking to implement a COVID-19 vaccination policy, you should seek legal advice. This is a highly fact-specific issue, and as further developments continue to emerge, the considerations involved will continue to change. In the current socio-political climate, even the best vaccine requirement policy is likely to receive legal challenges and cause a stir amongst employees. Any employer seeking to implement such a policy should be prepared to meet these challenges.
Kara Ellison – Pihl Law Corporation
The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.