Can your workplace make vaccination mandatory? Experts say most can, but they must be careful about how they terminate workers who refuse

Makayla Jenkins follows all the masking and physical distancing protocols at her Toronto city service job.

She has not been vaccinated against COVID-19 nor does she plan to get inoculated in the near future. Jenkins (not her real name) is worried about long-term side effects of the new mRNA vaccines and is waiting until she feels it is safe to get vaccinated. She asked not to be identified because she's concerned about repercussions from her employer for speaking to the media about her vaccine status.

Jenkins says the handful of coworkers she shares a small office with all know she has not been vaccinated.

Initially they were a bit concerned," Jenkins said. Every time a pop-up clinic came up somewhere, they would let me know."

Jenkins explained to them her apprehensions and she says they accepted her decision.

While Jenkins's coworkers may have put aside their concerns, a new poll from the Angus Reid Institute shows that many Canadians haven't.

As reopening promises to bring more than a year of working from home to an end, 61 per cent of Canadians said they support mandatory proof of vaccination in the workplace.

Business leaders agree.

In the absence of federal guidance, individual business owners have been coming up with their own policies around vaccinations. The result is an inconsistent patchwork of requirements that is causing unnecessary confusion and feeding a climate of uncertainty that allows misinformation to thrive.

Daniel Safayeni, vice-president of policy for the Ontario Chamber of Commerce, wants the feds to step up with a nation-wide policy providing hard answers on whether or not businesses can ask their employees to provide proof of vaccination and what they should do when workers decline.

Without that guidance, says Dan Kelly, president of the Canadian Federation of Independent Business, most small businesses are reluctant to enforce their own vaccination policies. He notes that Manitoba is rolling out proof of immunity cards complete with QR codes and Quebec has announced plans to introduce its own vaccine passports this fall. But so far Ontario Premier Doug Ford has publicly rejected the idea.

Not all businesses are waiting on the government, though.

Filmores Gentleman's Club in downtown Toronto is advertising that all of its staff, dancers and entertainers are fully vaccinated. And customers must be, too, if they want to get inside.

It's our employees and dancers who weren't going to come back unless everyone was vaccinated," said the club's manager, Kaspar Cameron. Even our patrons, they're walking in with their vaccine papers in hand like it's a badge of honour."

There's nothing stopping most employers from implementing a mandatory vaccine policy as long as it accommodates those with medical or religious reasons not to get vaccinated, says Lai-King Hum, an employment lawyer and the founder of Hum Law Firm. Employers are already required by the Occupational Health and Safety Act to provide a safe work environment by ensuring employees follow all public health guidelines, including physical distancing and wearing masks.

So employers can use their own policies to encourage employees to get inoculated. What's unclear, says Hum, is whether or not those policies would hold up in court if an employer fires an employee for refusing the vaccine. She's confident a vaccine mandate would stand in high-risk workplaces, such as in long-term care or health care. But she is less confident it would hold up in an office or warehouse setting.

I would recommend, if they're going to terminate, not to do so with cause," Hum said.

When an employer fires an employee with cause, they do not have to pay severance, but they may be required to prove in court that there was a valid reason for the termination. If they terminate without cause, the employer must give the employee either one week notice or one week salary for each year of employment before letting them go, unless a collective bargaining agreement specifies otherwise.

That's the safest way to stay out of court, says Hum. Until someone sets a precedent by challenging a vaccine mandate in court, it's not clear whether a judge would rule for the employer or the worker, she added.

Kelly says that lack of clarity creates an unfair burden for already struggling businesses.

(This leaves) an employer who's been closed for nine straight months in the position of having to go out and hire lawyers to give them advice," said Kelly. We need governments to provide some leadership here and sadly they want to run away from this, too."

Ian Culbert, executive director at the Canadian Public Health Association, says employers should try gentler methods before resorting to firing valuable employees.

Each person's body is sacrosanct. No one can be forced to receive a vaccination against their will," he said. Our responsibility is to convince people that it's a safe and responsible and correct thing to do."

While a poll by market researcher Ipsos found that eight in 10 Canadians were already vaccinated or soon would be, it also found that one in 10 of the respondents are vaccine hesitant and another one in 10 said they will definitely not" get the vaccine.

Culbert says employers should first consider accommodating hesitant employees by keeping them in socially distanced roles or letting them continue to work from home where possible.

Threatening their jobs can intensify distrust, he says. Employees may not be comfortable telling their employers they're unvaccinated if they feel their livelihood is on the line.

Even one-on-one conversations with employees can be quite difficult because a person choosing not to be vaccinated can quite quickly become defensive," Culbert said.

Ross Upshur, a professor at the Dalla Lana School of Public Health, says the first challenge to returning to the office is delivering enough doses to reach herd immunity so unvaccinated people can get that indirect protection.

The greater the number of unvaccinated people in a congregate setting (such as an office), the greater the risk," he said.

He points out that doctors must already show proof of immunization for diseases such as measles to practise. If they can't get the vaccine for medical or religious reasons and there is a measles outbreak in their area, they wouldn't be allowed to go to work, he says.

Just like if you don't want to wear a mask, you can't get past the front door of the hospital where I work."

Currently, he says, there's a COVID-19 outbreak everywhere. That's the definition of a pandemic. And during a public health crisis, that same logic applies to workplaces where the virus could spread, Upshur says. During an emergency, the balance between public good and individual freedom might change.

For now, Public Health Ontario is encouraging Ontarians to get vaccinated but not actually requiring vaccinations for most workplaces.

Likewise, back at Filmores, Cameron says their vaccination policy is purely voluntary for the moment, though some employees opted not to return when they heard about it. And while most patrons have embraced the policy, the club was one of several businesses harassed with emails and negative reviews online in connection with the site SafeTO-Do. The website - which listed businesses that advertised that all staff have been vaccinated - was shut down by its creator Toronto lawyer Brandon Mattalo on July 20, less than a week after it went up. Mattalo said anti-vax trolls had targeted several of the establishments on its list.

Cameron says he had no problem with either the website or the angry emails. However, he is disappointed the government hasn't implemented a vaccine passport system to speed up the transition to normalcy.

I'm shocked that we'll resort to lockdowns but we won't resort to vaccine passports," he said.

We sympathize with their situation," said Safayeni. They're (between) a rock and a hard place of trying to open up safely and not having any means to verify the safety of their operations through vaccine verification."

That's exactly the kind of confusion the OCC is hoping to prevent by calling for the government to implement a proof-of-immunization policy nationwide, he says.

That policy could include showing proof of immunity to go to crowded concerts, fly to international destinations and show up at workplaces where employees are in close contact with each other or the public.

Jenkins says she'd be disappointed if employers and governments would put people's livelihood at stake if they refused to get vaccinated.

It's sad that it has to come to that, because we do have rights and they're practically taking them away."

She says if such a system were put in place and became a requirement to keep her job, she still wouldn't take the vaccine.

However, Safayeni doesn't think vaccine passports are an unreasonable limitation on individual rights.

It's a fair point, but there are limits we place on people as a society. A driver's licence is an example," he said, adding there's also a drinking age limit.

Showing proof of immunization during a pandemic should be no different, he says.

Meanwhile, Culbert encourages those still hesitating to get vaccinated to think about what they're waiting for.

What we know about vaccines tells us adverse effects show up within months of your dose, not 40 years after. So how long will you wait? What are you willing to give up for that time?"