As of July 21, 2021, 64.82% of Ontarians and 43.74% of Canadians have received both doses of the COVID-19 vaccine; however, neither the province nor the country has mandated vaccinations. This leaves the question of whether employers can require employees to be vaccinated. The answer is not straightforward and requires an evaluation of several considerations.

There has yet to be a court decision specifically related to workplace COVID-19 vaccination policies. Past caselaw related to vaccinations, such as the flu vaccine, likely will not be broadly applicable to COVID-19 vaccination policies given the unique circumstances of the pandemic.

While the Ontario government has encouraged workplaces to promote COVID-19 vaccinations, the government has yet to issue any guidance on whether employers can require vaccinations. Regardless of whether employees are vaccinated or not, employers should continue to follow public health recommendations to help prevent the spread of COVID-19 in the workplaces, such as working from home where possible, daily screening, maintaining physical distancing, and proper use of PPE.

Under the Ontario Occupational Health and Safety Act and generally under Occupational Health and Safety legislation throughout the rest of Canada, employers have an obligation to maintain a safe workplace and to take every reasonable precaution to protect their workers. This includes protecting workers from the hazards of infection. In certain sectors, requiring vaccinations may be deemed a necessary step to protect workers from such a hazard. However, the analysis is highly contextual and will be workplace specific. Is it notable that many workplaces have functioned safely throughout the pandemic without the vaccine being available.

One of the major considerations with requiring employees to be vaccinated is human rights. Both provincially and federally, employers cannot discriminate against employees based on a protected ground outlined in the respective human rights legislation. Requiring employees to be vaccinated may inadvertently discriminate against those that cannot be vaccinated due to a protected ground, such as disability, religion, or creed.

Further, employers have the duty to accommodate employees to the point of undue hardship. This would include accommodating employees that cannot be vaccinated based on a protected ground. For example, if an employee cannot be vaccinated due to a disability and it is unsafe for that individual to attend the workplace in person, allowing continued work from home may be necessary to fulfill the duty to accommodate that employee.

Asking about employees’ vaccinations would be considered a request for personal health information, which raises further human rights and privacy concerns. Further, if an employee is not vaccinated due to a disability, explaining the reason they are not vaccinated may require that the employee disclose they have a disability, despite that employee not desiring such disclosure. Health information should only be requested if it is a bona fide requirement because of the nature of the job and any request should minimize the intrusion on an individual’s privacy as much as possible.

Another consideration is that there may be issues related to vaccine supply, distribution, and access. Not all employees have necessarily had the ability to obtain both doses of the vaccine to date and, for many, this is outside of their control. The question also arises as to whether the COVID-19 vaccine will be an ongoing requirement by an employer, should the vaccine be offered as an annual booster.

In summary, there is no clear answer on whether employers can require employees to receive the COVID-19 vaccine before attending the workplace and there are multiple considerations that need to be taken into account. Further, this is unchartered legal territory given the unprecedented nature of the COVID-19 pandemic. Therefore, prior to creating a mandatory workplace vaccination policy, we recommend seeking legal advice and contacting the appropriate government body (such as the Ministry of Labour and/or the relevant Public Health Authority) to seek direction.

Note on Employment Agreements

There have been many recent court decisions dealing with termination provisions in employment agreements and the law in this area continues to expand at a fast pace. Courts heavily scrutinize minimalistic termination provisions and outcomes often favour the employee, putting the enforceability of many current termination provisions in employment agreements at risk. For example, as written about in our June 2020 newsletter, in Waksdale v. Swegon North America Inc., 2020 ONCA 391 (“Waksdale”), the Ontario Court of Appeal found that a dismissed employee’s entire termination provision was unenforceable, including the “without cause” section, because the “for cause” section of the termination clause of the employment agreement was in violation of the Employment Standards Act, 2000 (“ESA”). The court found it was irrelevant that the employee was not terminated for cause. Leave to appeal to the Supreme Court of Canada was denied earlier this year.

More recently, in Perretta v. Rand A Technology Corporation, 2021 ONSC 2111 (“Perretta”), the termination provision in the employee’s employment agreement stated that, on termination, the employee would receive two weeks’ notice or pay in lieu thereof plus her ESA entitlements. There was no contemplation of a full and final release in the employment agreement. Once terminated, the employer required that the employee sign a full and final release to obtain the two additional weeks’ pay in lieu of notice. The court found that the employer’s request for a full and final release to pay the two additional weeks, as required by the employment agreement, repudiated the contract. Therefore, the employer could not rely on the termination provision. In following Waksdale, the court also noted that the “for cause” termination provision in the employment agreement was in contravention of the ESA, which would render the entire termination provision unenforceable. This was again irrespective of whether the employer was relying on the “without cause” provision.

As can be seen by Waksdale and Perretta, the law on termination provisions in employment agreements continues to expand. The recent court decisions highlight the difficulty of drafting enforceable termination provisions and call into question whether many existing termination provisions are compliant with this ever-evolving area of law. It is recommended that employers review the termination provisions in their existing employment contracts, even if recently drafted, to ensure they are as compliant as possible with the relevant caselaw. The lawyers at Heeney Vokey LLP are happy to assist in this regard.