Can vaccination be mandatory for employees
I do not believe Doug Ford is going to help employers on this issue. If he is not going to require staff in long term care homes to vaccinate in order to be paid to go to work, he is not going to do it in any other sector. I do not think it is a leap to say that a significant portion of Doug Ford’s constituency would not appreciate the Conservatives mandating vaccination. Masks were mandated by the government which relieves employers of the responsibility of bringing in their own policy. Apparently that will not be happening with vacinations. It will be left up to employers to decide if they are going to require employees to be vaccinated. If an employer does adopt such a policy they will have to weigh the Ontario Human Rights Code against the Ontario Occupational Health and Safety Act. It will have to guess which one will take priority in this pandemic.
We are constantly being told that vaccination does not provide 100% protection. You could be fully vaccinated and still contract the virus. You would probably have mild or no symptoms but could pass it on to somebody more vulnerable like an elderly person. Very infrequently the very young who cannot be vaccinated could become seriously ill. Even if the employer’s policy was that those with medical exemptions or religious objections to vaccination were exempt and could show up to work, that would not resolve the issue. Other employees could still argue that their health and safety is still being put at risk or that of the people in their lives and that that is more important than those Human Rights exceptions. From what I have read, medical exemptions would be extremely rare but many could claim a religious exemption or an exemption based on creed. If the employer did not provide those exemptions in its policy it would have to argue before the Ontario Human Rights Tribunal that providing those exemptions would be an undue hardship because of the risks to other employees and their families set out above. That Human Rights hearing would likely devolve into a very complex examination of the science at the time the policy was brought in.
If the employer wants to argue that its obligation to protect the health and safety of its employees supersedes its obligation to accommodate a disability or a religious or creed based exemption, it will have to have experts. Experts who support the proposition that potential exposure is sufficiently dangerous for the vaccinated to warrant the mandatory vaccination policy. The other side of the table would most likely have experts with statistics at hand minimizing that potential risk. No lawyer or anyone else who tells you they know how that process would end could be on solid ground.
Throughout this I am assuming that employees are not being terminated. They are simply being told that until they are vaccinated or the pandemic lessens significantly they cannot attend at work and they will not be paid. They would not likely get employment insurance. Clearly an employer that is running a long term care home or taking care of vulnerable individuals is going to have an even better and stronger argument for mandatory vaccination. The science on these issues changes daily because that’s what good science should do; gather more information and change conclusions accordingly. Right now the issue of mandatory vaccination is not being pressed very hard because the numbers are going down. If a variant takes hold that is even more transmissible and deadly, I would not be taking any bets.
