Employers in B.C. under Occupational Health and Safety legislation have a general duty to take reasonable precautions to protect the health and safety of their workers in the workplace. There may be specific instances where an employer, as part of this obligation, can require a COVID-19 vaccination. This will largely depend on specific industry regulation or practice, government directives, and legal cases that consider these issues. A key issue for employers is to balance their obligation of a safe and healthy workplace with the privacy and human rights of individual employees.
While there have yet to be any published cases in BC dealing with a COVID-19 vaccination policy, the Supreme Court of Canada in 2013 considered whether a unilateral drug and alcohol testing policy was permissible (see: Irving Pulp & Paper Ltd. v CEP, Local 30, 2013 SCC 34). In its decision, the Court directed that for a health and safety policy intruding on bodily integrity to be enforceable, the employer must establish:
- There is a “reasonable cause” for the policy (evidence of a serious, widespread workplace safety risk that cannot be addressed by other means); and
- On balance, the risk to workplace safety outweighs the harm caused by intruding on employee
privacy.
These principles would likely apply in the context of considering a COVID-19 vaccination policy. Part of this balancing exercise would likely require employers to:
- Provide alternatives to vaccination, where doing so is reasonable and does not compromise the safety of the workplace;
- Require only the minimum amount of employee medical information to be disclosed; and
- Accommodate medical conditions or religious objections preventing vaccination, to the point of undue hardship.
In high-risk workplaces, it may be the case that there are no acceptable alternatives to vaccination, but in low-risk scenarios, mandatory vaccination may not be appropriate. In the latter scenario, it may better for employers to adopt a “vaccinate or mask” program where non-vaccinated employees must wear PPE in certain circumstances.
If an employee refuses to be vaccinated, some best practices would be to:
- Prioritize safety of the workplace. Regardless of accommodation or steps to follow, if the lack of vaccination and refusal to follow alternatives (if any) represent a significant infection hazard, the employee should not be permitted into those sensitive areas of the workplace;
- Assess the reason for refusal – where grounded in a protected characteristic under the BC Human Rights Code (e.g. disability or religion), you must respond with accommodation efforts; and
- Respond proportionately to the situation and seek legal counsel if you are unsure how to proceed.
We encourage you to contact us if you have any questions about vaccination policies or accommodation in your workplace, or any other employment questions. We look forward to the next opportunity to be of service to you and wish you a healthy and safe summer.