Howard Levitt: Employers, facing heavy liability, will soon insist their staff get vaccinated. But who does the law side with?

Put yourself in this position: You are an employer, panicked at the risks of COVID-19 transmission in your workplace. If found sufficiently liable, you face up to a $10-million fine for carelessness towards COVID-19 under the Ontario Emergency Management and Civil Protection Act (there are similar statutes in other provinces). You would face additional massive fines under the Occupational Health and Safety Act. And let’s not forget, an employer that has been found sufficiently wanton could potentially face a year in jail.

On top of those threats, if employers fail to keep their workplace adequately safe, in compliance with the relevant standard of care prescribed by the public health authorities, you also face the well-trodden action of negligence. Ill employees entering the workplace and infecting co-workers, customers or vendors or those individuals transmit it to their families or others as a result of insufficient precautions could result in legal actions against you, with court decisions potentially in the millions of dollars. Most Canadian employers would be rendered insolvent.

If the workers in question are covered by The Workplace Safety and Insurance Board, then the employer will avoid the lawsuit, at least with respect to their own workers, but will quickly see their WSIB premiums surge.

You look for a magic bullet permitting you to sleep at night. And there is one solution, which with certainty will avoid every one of those risks. If you require all workers to vaccinate, respite will be yours, and none of the perils mentioned above can befall you. Negligence, as well as the public health statutes, is based upon employers falling below a reasonable standard of care and employees being stricken as a result. No one can challenge an employer, who insists on their employees’ vaccinations, as negligent. No one.

Given those stark choices, which employer will not leap with alacrity and insist upon vaccinations.

But can they?

Under our employment laws, safety trumps privacy. In addition, negligence is based upon non-compliance with the prevailing standard of care.

Once public health authorities deem it appropriate to recommend vaccinations for everyone and vaccines are sufficiently available to enable that, there will be a strong argument that not requiring vaccinations will be negligent. Even now, before all of that has occurred, there is no doubt that employees who deal with those susceptible to COVID-19, such as hospital workers or aides in long term care homes, can be forced to vaccinate on pain of dismissal for cause. The same, in my view, applies to any employee with regular contact with the public or who works in close proximity with others, such as a retail worker or an employee on factory floors.

Once public health authorities deem it appropriate to recommend vaccinations for everyone and vaccines are sufficiently available to enable that, there will be a strong argument that not requiring vaccinations will be negligent. Even now, before all of that has occurred, there is no doubt that employees who deal with those susceptible to COVID-19, such as hospital workers or aides in long term care homes, can be forced to vaccinate on pain of dismissal for cause. The same, in my view, applies to any employee with regular contact with the public or who works in close proximity with others, such as a retail worker or an employee on factory floors.

But once public health recommends it for everyone, there is little doubt that the same will be true for any employee who works with others. Obviously, there is no basis to require vaccinations for employees who work entirely remotely but, as vaccinations become de rigueur and offices reopen, there will be much fewer of those.

In addition to avoiding liability, employers requiring vaccines will become the employer of choice for staff and customers will prefer attending their stores and offices. As vaccine rollouts accelerate, those having to avoid working in the office to protect vulnerable family members will no longer be able to claim that and employers will be able to order them back to work.

The trend to compulsory mainstream vaccinations may start here with U.S. companies imposing their requirements on their Canadian branches. The Equal Employment Opportunity Commission (EEOC) said that U.S. employers could require employees to be vaccinated against the flu in its 2009 guidance on the pandemic.