Canadian Employment Law Today

Canadian HR Reporter, 2020 4 The vaccination debate at work THERE IS undoubtedly no better tool to help prevent the spread of COVID-19 than a vaccine. The Pfizer and Moderna vaccines authorized for use in Canada claim to be more than 90 per cent effective in prevent - ing or minimizing COVID-19 symptoms. However, no one can force another to un- dergo medical treatment without consent or statutory authorization. Our governments do not appear willing to pass legislation mandating vaccination. The preference, at least for now, seems to be encouraging vac - cination on a voluntary basis. Subject to human rights considerations — more on this below — there is no rea- son employers can't ask new employees to provide proof of vaccination status as a con- dition of employment. In a pre-pandemic world, though, employers did not think to include a term or condition of employment based on vaccination status. Existing em- ployees, therefore, present a more compli- cated situation. Non-unionized employers who unilat- erally change terms and conditions of em- ployment risk facing actions for constructive dismissal. The test is, briefly stated, whether the unilateral change is substantial in the eyes of a reasonable third person. The as- sessment is contextual and looks at all of the relevant circumstances. Right to bodily autonomy The common law jealously guards an indi- vidual's right to make decisions about mat- ters involving medical treatment and bodily integrity. Historically, a forced medical ex- amination has been considered an assault or battery. Hence, a condition of employment imposed by an employer to vaccinate against COVID-19 would undoubtedly represent a significant change to the employment rela - tionship. In the 1963 case of Thompson v. Oakville (Town), an Ontario court held that, in the absence of contractual or statutory author - ity, the employer had no right to require an employee to submit to an examination by a doctor of the employer's choosing. The Supreme Court of Canada has recog - nized in R. v. Stillman and R. v. Morgentaler that every individual has the fundamental right to determine what may done — or not done — to one's body. That right forms part of an individual's protection to "life, liberty and security of the person" under s. 7 of the Canadian Charter of Rights and Free - doms. In Fleming v. Reid, the Ontario Court of Appeal held that: "With very limited ex- ceptions, every person's body is considered inviolate, and accordingly, every competent adult has the right to be free from unwanted medical treatment." The court went on to say that it didn't matter if there were seri - ous risks or consequences that could stem from a refusal of medical treatment, as the "doctrine of informed consent ensures the freedom of individuals to make choices about their medical care." The right of medi - cal self-determination dictates that "it is the patient, not the doctor, who ultimately must decide if treatment — any treatment — is to be administered," said the court. Labour arbitrators in the unionized set- ting have invalidated employer policies that would require an employee to take a flu vac- cine or remain out of the workplace without pay during a period of flu outbreak. In the 2002 decision of St. Peter's Health System v. C.U.P.E., Local 778, an arbitrator found that suspending employees for refusing a flu vac - cination was a violation of the employees' Charter rights. In the 2018 decision of St. Michael's Hos- pital v. ONA, the arbitrator held that the hospital's policy of "vaccinate or mask" was unreasonable, in part because of the lack of evidence with respect to the efficacy of masks to contain the flu virus. In light of the current broad acceptance of masks to contain the spread of COVID-19, the St. Mi - chaels' Hospital decision may no longer be viewed in the same light. Moreover, other arbitrators — such as in the Alberta decision of Chinook Health Region v. U.N.A. Local 120, for example — have found hospital employ - er policies requiring employees to choose between vaccination or a non-disciplinary leave of absence to be reasonable. Changing expectations A recent arbitration decision may signal a greater willingness to accept encroachments into an individual's bodily autonomy in the name of containing COVID-19. In Decem - ber 2020, an Ontario arbitrator found in Caressant Care Nursing & Retirement Homes v. Christian Labour Association of Canada that a mandatory bi-weekly COVID-19 testing regimen was reasonable, despite the highly invasive nature of the test, which caused per - sistent nose bleeds for at least one employee. The decision in Caressant reflects the severi- ty of the COVID-19 pandemic and the excep- tional measures that have been undertaken to minimize spread of the virus. The same factors are likely to be persuasive in assessing whether a mandatory vaccination require- ment gives rise to a valid constructive dis- missal claim in the non-unionized context. While the privacy and security interests of employees are undoubtedly central to the analysis, the employer's safety obligations are also critical. Employers have an obliga - tion under health and safety legislation in each jurisdiction to take every reasonable precaution for the protection of workers. Since March, employers have significantly modified their workplaces to meet that duty and mitigate the spread of COVID-19. Em - ployees attending the workplace are expect- ed to comply with masking and physical distancing rules. What is reasonable in the circumstances, considered against an individual's privacy and autonomy rights, will depend on sev - eral factors, including the following: • The status of the pandemic. As of this writing, infection rates continue to CASE IN POINT: HEALTH AND SAFETY The COVID-19 pandemic wreaked havoc on the economy and society in 2020. In 2021, the focus will shift to the vaccines being developed and distributed with the hope that they will bring the pandemic to an end. However, not everyone is keen on getting vaccinated. Employment lawyer Rishi Bandhu looks at the legal considerations of requiring employees to get immunized through the lens of past legal battles between workplace safety and employee rights. BACKGROUND BY RISHI BANDHU COVID-19 vaccines will roll out across Canada in 2021, but can employers require employees to get vaccinated? While the privacy and security interests of employees are central to the analysis, the employer's safety obligations are also critical.

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