Making COVID-19 Vaccines Mandatory for Workplaces: an OHS Perspective10-Feb-21
by David Myrol
Canadian provinces are currently in the early stages of distributing the COVID-19 vaccine. As a result, many employers are wondering whether they can or need to mandate vaccination as a condition of employment.
However, it is currently uncertain whether employers can make COVID-19 vaccines mandatory for their workplaces. It’s a complicated issue involving many different and competing social, ethical, and legal requirements. Finding the right answer involves balancing these factors which include privacy interests, human rights, labour and employment law, and tort liability.
This article outlines a principled approach in Occupational Health and Safety law (“OHS”) to follow when considering the vaccine question. For more information about the other relevant factors to consider, see the McLennan Ross LLP COVID-19 webpage.
There is some precedent in Canada authorizing employers in the health care sector to make flu vaccines mandatory for employees, but the case law is inconsistent and limited. Thus far, no Canadian legislature has made the COVID-19 vaccine mandatory and no court has yet ruled on the issue. This will change with time, but in the interim employers are on their own.
A patchwork quilt of OHS laws covers this country. Each province makes its own OHS laws for its worksites and the same applies for federally governed worksites. Accordingly, OHS laws differ from jurisdiction to jurisdiction in terms of detail, scope, and enforcement structure. However, a few principles in OHS law are common to most jurisdictions and provide a principled approach to examine the vaccine question from an OHS perspective.
The starting point of this principled analysis is the Internal Responsibility System (“IRS”). The IRS serves as the guiding philosophy for all OHS law in Canada. It refers to the idea that each person within an organization is directly responsible for health and safety, and that no workplace can be safe or free from disease without everyone doing their part. This common sense approach makes it clear that OHS is a shared responsibility between management and workers.
One of the primary OHS responsibilities on employers is the general duty to take reasonable steps to protect the health and safety of workers and others from hazards at their workplaces. COVID-19 is a known workplace hazard, and as such, the employer is responsible for protecting workers and others from contracting the virus at the workplace. Employers must take reasonable steps to prevent or control its spread. What is “reasonable” depends on the circumstances of each case.
Another OHS principle found in most jurisdictions is the “hierarchy of controls”. This hierarchy establishes an order to follow when eliminating or controlling workplace hazards. A workplace hazard must be eliminated where reasonable. If that cannot be done, then the hazard must be controlled through engineering measures, administrative procedures, personal protective equipment (“PPE”), or a combination thereof. The hierarchy establishes the order, respectively. The underlying objective is to reduce the hazard to as low of a level as reasonably achievable.
Engineering controls for COVID-19 include things like the vaccine itself, improving the ventilation system of a workplace, installing plexiglass barriers, etc. Administrative procedures are things like social distancing, cleaning and sanitizing the workplace, staggering work shifts, etc. They generally rely on workers following the procedures or rules. PPE includes things like masks, goggles, gloves, gowns, face shields, etc. The distinctions between these categories are not always obvious and often overlap.
While workers share the responsibility for making a workplace safe, they also have basic rights under the legislation which must be respected. These basic rights are generally known as: (1) the right to know what hazards are present at the workplace; (2) the right to participate in keeping the workplace safe; and (3) the right to refuse work that is dangerous to themselves or others.
It is expected a percentage of workers will refuse the vaccine for a variety of reasons. Bona fide refusals for religious or medical reasons will likely have to be accommodated. Other workers may refuse the vaccine out of fear. They may argue the vaccine could harm them, that medical science does not establish the vaccine offers more protection than the existing measures already in place, or that there is no evidence the vaccine prevents infecting others at the workplace. If these arguments are accepted by the Regulator, accommodations will be ordered.
Regardless of the outcome in any particular case, the principles of OHS law provide a principled approach to consider should the vaccine question arise in the workplace.