Ed Canning: Can employers insist on COVID vaccination for employees?

I have been asked repeatedly of late whether I think employers can force employees to take the COVID-19 vaccine when it is available.

What people are really asking is whether an employee can be excluded from the workplace and laid off if they refuse to take the vaccine. The answer to this question will begin with the Occupational Health and Safety Act which requires employers to take every precaution reasonable in the circumstances for the protection of a worker's health and safety.

Of course, employers don't require employees to prove they've received all the usual inoculations that have been around for decades. That is because there is sufficient herd immunity that it is not a pressing issue. With COVID-19, of course, it will be some time before there is sufficient herd immunity for concern to wane.

But, for now, can an employer insist on vaccination?

The devil will be in the scientific details. The question is not whether the unvaccinated are a danger to their selves, that is their choice as adults. The question is whether the unvaccinated present a risk to the health and safety of other workers.

Depending on which vaccine, we are told it will protect you from any significant symptoms up to 95 per cent of the time but some vaccines are significantly lower in their efficacy. What we do not know is whether the vaccine inhibits people from spreading the disease. Although very initial findings are that it does somewhat inhibit the spread, if that turns out not to be the case, it would change things for employers.

If everyone is still spreading the disease, what does it matter if the unvaccinated are also potentially spreading the disease? On the other hand if being vaccinated significantly inhibits the ability of people to spread, the question shifts. The unvaccinated now become the potential super spreaders. They are arguably putting at risk the vaccinated because there is still a 10 or 15, or whatever, per cent chance that they may become ill. Is that enough of a risk to the health and safety of other workers for the employer to keep the unvaccinated out of the workplace?

Ultimately, the Ministry of Labour is going to have to come down with a decision if this becomes an issue.

Any individual claiming that they cannot be vaccinated for medical reasons will have a tough case to prove. I am not a scientist, but I have seen nothing to suggest that there is any reason for the vast majority to not get the vaccination.

Imagine if an employer excludes an employee from work and tells them they are laid off until they show proof of vaccination. That employee files a complaint with the Ontario Human Rights Tribunal claiming that their right to be accommodated under the Human Rights Code for their disability is being violated. They claim that they have a medical condition that makes it dangerous for them to get vaccinated. In order to win that claim they are going to have to get a doctor to take the stand to back them up. That doctor is going to have to come armed with scientific evidence and not just an opinion.

But, let's assume that it is found that the employee should not be vaccinated for health reasons. Does that mean that employers must make everyone wear masks in the workplace far into the future and observe distancing rules? If the employer refuses and the person who cannot be vaccinated files a Human Rights Complaint for failure to accommodate their disability, the employer will claim undue hardship. The employer's position will be that it is an undue hardship to force 100 other employees to wear masks all day long to accommodate the one employee who cannot be vaccinated. I think the employer might succeed.

Ultimately, it will be the Ministry of Labour and the Ontario Human Rights Tribunal, as informed by hard scientific fact, that decide the answer.

Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. Email him at ecanning@rossmcbride.comFor more employment law information; www.hamiltonemploymentlaw.com