During the first full week of the campaign, mandatory vaccination policies have been a topic of frequent discussion. The announcement made by the Federal Government just prior to the start of the campaign that it would consider introducing mandating vaccination policies in the federal public sector and in certain federally regulated industries has opened the floodgates and resulted in many federally and provincially regulated employers announcing mandatory vaccination policies of their own.
Employer mandatory vaccination policies engage employee human rights, privacy, and in unionized workplaces, collective agreement interests. These must be balanced against the employer and public interest in mandatory vaccination and considered in light of other measures available to prevent the spread of COVID-19 and fulfill workplace health and safety obligations. While, until recently, employers have received limited guidance from government and regulators, we are not completely without precedent. There is existing case law – mainly from unionized health and long-term care workplaces – addressing the mandatory vaccination of workers. Prior to the current pandemic, mandatory vaccinations policies have usually been struck down by arbitrators. Some of these cases were decided in the context of flu breakouts at health or long-term care facilities, but none of these cases were decided in a global pandemic.
The tide has now clearly shifted. Various public bodies are now leading by example and/or recommending that mandatory vaccination policies be implemented. The question that now remains is what restraints, if any, will the law impose on a Canadian employer’s ability to issue and then enforce mandatory vaccination policies. The outcome of the balancing of competing employer/public and employee interests in mandatory vaccination is extremely context-specific. What is permissible in one workplace may not be in another. What is not permissible now may be permissible at another time as conditions change (e.g., a spike in cases, hospitalisations, or deaths), as more becomes known about the vaccines and their effects, or as the government intervenes. You only need to look at how the guidance on masks, temperature checks, and mandatory health screening of workers has evolved during the pandemic to see how quickly and completely things can change.
We are continuing to monitor this issue closely. If you have questions about workplace issues arising from vaccination, please contact the author or your regular Fasken lawyer. If you have any questions regarding #Election44, please contact us at: firstname.lastname@example.org.