Canadian Employment Law Today

Canadian HR Reporter, 2020 escalate despite government-mandated restrictions, including lockdowns. • The nature of the employer's operation. Long-term-care homes, for example, are likely to be afforded more leeway in the measures they choose to protect against the virus. A policy of mandatory immu - nization in a workplace where physical distancing is possible and interaction with members of the public can be kept to a minimum is less likely to pass scrutiny. • The consequences for failing to vacci- nate. Employers who impose termination of employment as a penalty for failing to vaccinate are more likely to face and be liable for constructive dismissal. Human rights considerations An employee's reasons for refusing to immu- nize will also be scrutinized. While employ- ees are likely to be afforded deference over personal decisions involving vaccines, hu- man rights considerations may represent the proverbial trump card for both existing and new employees. Possible human rights objections to vacci- nation could include religious- or disability- related concerns, including allergic or other adverse reactions to a vaccine. In those cir- cumstances, an employer would be expected to accommodate, unless it can be demon- strated that the vaccination is a bona fide occupational requirement and accommoda- tion of the employee's refusal to vaccinate would be impossible. No unequivocal answers Like most legal issues, there are no unequivo- cal answers to the question of whether or not an employer can require vaccinations as a condition of work. What is relatively clear, though, is that the answer will depend on the employer's imposed consequence for re - fusing to vaccinate. COVID-19 has changed expectations in ways that could never have been anticipated. Employers will continue to be given leeway to introduce policies that protect the workplace, but they will unlikely be able to coerce vaccination on the threat of termination. Ultimately, to mitigate the risk of liabil - ity, the safest course of action for employers electing to require vaccination throughout a workforce is to avoid mandating termina- tion of employment for non-compliance. A temporary, non-disciplinary leave of absence is more likely to be considered reasonable. A remote working assignment, if feasible, pres- ents the least risk. COVID-19 will disappear as a pandemic in time, so temporary solu- tions are less likely to be assailed. The employer's existing policies, commu- nication practices and foundation of trust with employees are critical to avoiding is- sues. Employers who maintain flexibility, together with open and respectful commu- nication that occurs well in advance of any implementation deadlines, are more likely to avoid legal issues. For more information, see: • Thompson v. Oakville (Town), [1964], 1 O.R. 122 (Ont. H.C.). • R. v. Stillman, [1997] 1 S.C.R 607 (S.C.C.). • R v. Morgentaler, [1988] 1 S.C.R. 30 (S.C.C.). • Fleming v. Reid, 1991 CanLII 2728 (Ont. C.A.). • St. Peter's Health System v. C.U.P.E., Local 778, 2002 CarswellOnt 4709 (Ont. Arb.). • St. Michael's Hospital v. ONA, 2018 CanLII 82519 (Ont. Arb.). • Chinook Health Region v. U.N.A., Local 120, 2002 CarswellAlta 1847 (Alta. Arb.). • Caressant Care Nursing & Retirement Homes v. Christian Labour Association of Canada, 2020 CanLII 100531 (Ont. Arb.). January 27, 2021 | Canadian Employment Law Today CREDIT: RIDOFRANZ iSTOCK ABOUT THE AUTHOR Rishi Bandhu Rishi Bandhu is an employment lawyer in Oakville, Ont., advising employers and employees on all aspects of employment and labour law. He can be reached at (905) 849-0025 or rishi@blpc.ca.

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