Employer mandated vaccine will likely be a case by case basis: Lawyer
As the first shipments of coronavirus vaccines are injected into the arms of frontline workers across the country, important conversations have begun about how this will impact the return to work, or the continuation of work, for millions of Canadians.
Vaccine hesitancy has emerged, defined by the World Health Organization as people purposely delaying receiving available vaccines. Because COVID-19 inoculation campaigns are in their infancy, reasons for choosing to forego injection range from concerns over efficacy and safety, to unsubstantiated conspiracy theories.
For employers, a key question is whether companies can force workers to get inoculated in the coming year. It’s a complicated calculation for business owners and managers, fraught with human rights, moral and legal issues.
According to labour lawyer Lisa Stam, founder of SpringLaw in Ontario, the best course of action for employers is to approach the situation with empathy, while balancing safety and legal risks for their workforce. She and other experts advise against mandating employees to get the COVID-19 vaccine, although there are ways to encourage as many as possible to get inoculated.
HUMAN RIGHTS VS. BUSINESS RISK
Mandating vaccination for people who have health reasons for foregoing inoculation, or “deeply-held religious or moral reasons” is a clear-cut violation of human rights, Stam said. Businesses will have to find a way to balance the goal of providing a safe workplace, for employees and clients alike, with an individual employee’s right to refuse vaccination. This entails “difficult conversations” best handled by human resources professionals, she said.
“The legal answer is going to take a backseat to the emotions, politics, religion, philosophical positions that are going to lead this debate. I see some of the legal commentary coming out, but I can’t help but think it’s all secondary to the practical conversations employers need to have,” Stam said.
In the case of workers who won’t take a coronavirus vaccine, employers have three options: Allow them to work separately or remotely; place them on unpaid leave with the option to return post-pandemic or after being vaccinated; or termination. Stam said all options should be exhausted before choosing to terminate, and that letting someone go for this reason should come with a “robust package” based on their seniority, contract and situation.
“Some businesses will want to consider the business risk involved with your workforce, customers, safety of your environment and business reputation. And you’ll want to weigh the cost of a very uncertain legal battle with one employee who refuses to get vaccinated,” she said.
FRONTLINE WORKERS AND UNIONS
In the case of work that can’t be done remotely, with a strong case for requiring coronavirus immunity, employers are in a difficult spot. And according to Stam, the considerations for mandating coronavirus immunization don’t change if the employer purchases the vaccine, or has it supplied early as is the case for frontline healthcare workers.
The University Health Network is considering this very situation. UHN represents more than 15,000 employees, at five large Toronto-area hospitals, rehabilitation and education facilities. Many of its employees are in direct contact with patients, including vulnerable populations. Many will likely be eligible to receive COVID-19 vaccination ahead of the general population. UHN spokesperson Gillian Howard said it wouldn’t act unilaterally on this matter. It requires input from the federal and provincial governments and, because it deals with unionized workers, representatives of 20 different collective agreements.
“The negotiation would be with each union and there would be a dependence on how close to working with COVID patients you might be,” Howard said. “It’s very early days for everybody in the health care sector, not just Canada. People want to know about the efficacy of the vaccine over time, how long immunity lasts and incidents of side effects from the vaccine. Those are all things for future discussions.”
UHN is governed by the Public Hospitals Act and workers are required to be immunized against the measles and mump – two vaccines that Howard said have stood the test of time. She said she believes that most UHN employees would voluntarily take a COVID-19 vaccine, especially when more data is available. “People working in healthcare have had a long, hard go at this and it’s not without the fear that they’ll contract it themselves or take it home to their families,” Howard said.
When it comes to hiring new employees, Stam said employers have options. Vaccination can be a term of their job, provided it is included in advertising and the interview process. However, if a prospective candidate has a valid reason for not getting inoculated, employers risk running afoul of discrimination laws.
“Hopefully, people will self-select out of the job if you make it clear in your advertising and postings that it’s required. But the cost and stakes are lower than if you were dealing with an existing employee, because you could possibly have to terminate them as opposed to merely not hiring them. The losses they’re suffering are very different,” Stam said.
Stam added she will be among the first in line for the vaccine when she’s eligible, but the legal impetus against forcing employees to get inoculated is strong. “It can conjure up so much terrifying history for certain groups of people and the idea of forcing anyone to inject anything into their body, even if it was 100 per cent safe. I think we, as a society, should pause at whether we should do that,” Stam said.
A better approach is to encourage workers to educate themselves about the vaccine by talking to their medical practitioner. Additionally, companies can connect employees with experts.
“Offer lunch and learns, webinars,” Stam said. “Talk about the science and safety of it and how Health Canada approves drugs. Educating people on all of this will be far more effective and compassionate.”