Howard Levitt: Vaccinations would likely be mandatory for all employees, unless you work from home

In law, safety trumps privacy.

Employers are either terrified — or foolish.

Various statutes, discussed in previous columns, put them at risk of incarceration or multimillion dollar fines if they play fast and loose with COVID-19 and its potential impact on their employees and customers.

For good measure, on Nov. 20, as I discussed last week, the Supporting Ontario’s Recovery Act came into law immunizing (pun intended) everyone against COVID-19 cases — except, well, employers.

And of course, there is the well-trodden action for negligence if an employer fails to keep its workplace sufficiently safe and a worker, customer or, through contagion, their family, friends or other contacts, contract COVID-19. That action could literally be for millions of dollars, enough to bankrupt a large percentage of Canadian businesses. This is not to suggest that protecting lives is only a mercenary consideration. Most of the many employers I know take great pride in ensuring the well-being of their employees and customers.

So how are employers reacting to these buffeting risks? Mostly by keeping much of our economy running at a reduced capacity, shutting down, functioning with employees working from home, or opening with fewer employees.

If they are open, as is my office, there are many productivity reducing measures taken every day, such as reduced boardroom and lunchroom capacity, extra spacing, smaller meetings and so on. The point is that most employers would quickly seize upon anything which put them in a time capsule to back before March 2020.

What is that magic bullet? The much anticipated vaccine. So the question on the minds of many are whether it can be made mandatory. A clear conflict between privacy rights and worker safety.

There is no case yet but they will come. The closest analogy are a couple of older arbitration cases dealing with whether employers could require employees to be vaccinated for the flu. But they are arbitration cases, not even binding on other arbitrators, let alone the court. And one basis of their findings was that that vaccine was not particularly effective.

It’s hardly worth mentioning that COVID-19 is dramatically more virulent and contagious than the flu. Although touted in various legal newsletters on COVID-19 vaccinations, those arbitration cases are irrelevant to the discussion.

What will the courts and arbitrators do?

There is no question in my mind that employers will be able to compel employees who work with the elderly or the immunocompromised to be vaccinated on pain of discharge. It will similarly be the case for employees who, by the nature of their work, are surrounded by other employees or by members of the public, such as in factories and retail establishments.

Vaccination would not be mandatory for employees working from home, that is, until they are recalled to work, which is expected to occur in great numbers when vaccinations become broadly available.

If employees have private offices or otherwise work in environments where masks and social distancing are easy to apply, the employees’ argument against being vaccinated will be simpler. In the main though, if the vaccination is proved to overwhelmingly work and has no material side effects, employers will be able to require their employees to vaccinate. As I have said in many contexts surrounding COVID-19, in law, safety trumps privacy. That is supported by our various safety legislation which the courts will look to for direction.

The only two exceptions could be human right exemptions based upon religion and disability. The employee would have to show that they belonged to an organized religion where vaccination is proscribed. If they could then be accommodated by requiring regular testing, wearing a mask or allowing them to work from home, the employer would have to comply but only if that was practical for that position.

A disability exemption would have to be claimed based upon an existing disability precluding them from being vaccinated. But again, the exemption would only apply if other measures could be taken to ensure workplace safety for everyone else. That is the difficulty with employees whose disability prevents them from wearing masks. If not wearing masks creates an unsafe workplace, they need not be accommodated unless an alternate protection can be found.

There is another issue. To escape the liabilities discussed above, employers will want to protect themselves by compulsory vaccination. That is the gold standard in avoiding any risk of prosecution or negligence actions relating to an unsafe workplace.

Although there will be the inevitable anti-vaccers, there will be pressure, likely from the majority of employees, to have compulsory vaccinations to protect them and their families. Employers who are not attuned to that pressure will not be employers of choice. And just as customers are known to avoid retail establishments that are not rigorous in requiring masks, employees may have market advantage by requiring all of their employees to vaccinate.

If vaccination becomes the norm, recommended by health authorities, then an employer failing to require vaccinations will be providing their employees and customers with a stronger argument for negligence against them if they contract the disease. Negligence, after all, is based upon not following the accepted standard of care.

Investors are increasingly looking at social responsibility in selecting where to invest. Requiring vaccinations could be one of those factors also impacting on investment decisions.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.