Mandatory vaccinations unlikely in B.C. workplaces

Special report: Lawyers caution that policies could vary significantly based on the profession

Andrea Raso, employment lawyer at Clark Wilson LLP, doubts the province will introduce legislation mandating vaccinations in workplaces: “There are other ways to mitigate the risk”

Offices left mostly barren during the pandemic may soon be home again to the hum of workplace chatter and lunchroom confabs as British Columbians get their COVID-19 vaccinations en masse in the coming months.

But if employers want throngs of work-from-home employees to return to the office, can they tell them to get their jabs first?

“The first question is: What do people mean by mandatory vaccinations?” said Elizabeth Reid, a lawyer specializing in employment, labour and human rights at Vancouver’s Boughton Law Corp. “You can’t hold your employees down and say, ‘You’re getting this whether you want to or not.’”

But that doesn’t mean there won’t be consequences for non-vaccinated workers, and situations may play out differently depending on the profession.

“As a general rule, any kind of mandatory vaccination policy is going to have to provide exceptions for protected human rights grounds,” Reid said, pointing to people who refuse vaccines on religious grounds or because of underlying health issues such as allergies.

“There can be what they call vaccinate-or-mask policies, and we see those in the health-care industry.”

Workers may decline to get a shot, but that may mean they’ll be required to mask-up the rest of the time they’re at work.

And if vaccines were to be mandated in a workplace, the authorization would have to come either through an order from the Office of the Provincial Health Officer or legislation, said employment and human rights lawyer Andrea Raso.

She doubts, however, that any legislation would be introduced.

“We have other ways to mitigate the risk,” said Raso, a partner at Clark Wilson LLP in Vancouver, noting the mask mandate example.

Other measures such as physical distancing and following arrows to keep people from coming into close contact may also suffice.

Another issue to consider is what happens to employees who are told to work from home if they refuse to abide by safety guidelines set out by employers.

“The employer has to be careful with that,” Raso said. “If the employee says, ‘I want to be in the workplace and that’s the best way I could work,’ and the employer insists that they remain at home, you could possibly see some constructive-dismissal kinds of allegations.”

Raso and Reid both said it’s fine for employers to encourage employees to get vaccinated, but only to a certain extent.

Sharing information with workers from a reputable public health agency won’t cause any issues, according to Reid.

“But if it’s accompanied by a threat, that’s a different matter,” she said.

There’s significant case law regarding vaccinations within the realm of health care, and Reid expects the issue to be further tested in B.C. in the coming months – but mostly outside of health-care jobs.

“The leading cases or the first cases we’ll see are in that unionized environment,” she said.

“They have the infrastructure where they have people who deal with workplace concerns and speak for the staff. It’s a bit more challenging in a non-unionized environment. You have to get individual employees together to bring concerns forward.”

Reid said the more coercive a policy, the greater the legal risks for an employer.

“It’s important for the policy to be really tailored to take into consideration both the needs of the employer and the concerns [of] the employees,” she said.

It may also be difficult for employers to demand proof of vaccinations from employees, and Reid said considerations for B.C.’s privacy laws will have to be taken into account if bosses store that information.

She said a 1992 quote by BC Court of Appeal Justice Mary Southin has been top of mind as employees and employers navigate questions emerging over vaccinations: “It is not for the employee nor for the court to consider the wisdom of the procedures. The employer is the boss, and it is an essential implied term of every employment contract that, subject to the limitations I have expressed, the employee must obey the orders given to him.”

Or as Reid summarizes it: “You might think your employer’s an idiot, but if it’s not harming you, and it’s not illegal or dishonest or unethical, you have to do it.”