The 'no jab, no job' argument is gaining traction
As the world continues to battle with the COVID-19 virus, employers are divided over whether or not to make vaccines mandatory. The ‘no jab, no job’ argument has some executives on side, with airline Cathay Pacific recently announcing their plans to make vaccines mandatory for all aircrew. However, how legal is it to fundamentally insist on vaccinating teams? Do employees have a choice in all of this?
“You can't force an employee to undergo a medical procedure,” added Mike MacLellan, partner at Crawford Chondon & Partners LLP. “You can’t hold someone down and inject them - that's assault. There are limited situations in which a condition of employment can stipulate being vaccinated. For example, we see this in childcare – where in Ontario childcare employees are often required to be inoculated against diseases that could really impact children – such as measles, mumps, and rubella.”
However, that’s really the only current exception to the rule. According to Mike, most employers are not able to require their employees to take a vaccine. On the other hand, employers do have obligations under their jurisdiction’s health and safety legislation.
“In Ontario, we have the Occupational Health and Safety Act. That obligation means employers must take all reasonable steps to avoid workplace hazards – and an infectious disease that caused global pandemic certainly qualifies as a workplace hazard.”
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Essentially, there could be a different approach for every employer. As long as organizations take the necessary measures to keep their workplaces safe and workplace policies, mandating a vaccine may not be needed.
“We’re advising our clients of the importance of having a clear, transparent policy in place for keeping the workplace safe – one which allows for the many different thresholds of what’s reasonable, depending on whether or not employees are vaccinated.”
The fact that employers can’t force their workers to be vaccinated opens up questions around refusal. There are many reasons why a person may choose not to be jabbed – from personal to medical to religious – but what does this means for their future employment?
“In most cases you can’t just fire someone purely because they refuse to be vaccinated,” added Mike. “If the law changes, then I could see that being applicable in a childcare or elder care setting, in which the employees are directly dealing with a vulnerable person. As it stands, Ontario doesn’t have a law on the vaccine yet - the closest thing we have are cases dealing with flu shots and masks.
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“I anticipate that when public health guidelines loosen for people who have been fully vaccinated, we'll be able to adjust our workplace policies too. For instance, a person who outright refuses the vaccine can’t be forced to have it - but in order for the employer to fulfil their legal duties to maintain a healthy and safe workplace, different rules are going to apply to these people. And in my opinion, so long as employers are being reasonable and treating their employees with good faith, I think that would be completely appropriate.”
