Employers seek legal advice on mandating COVID-19 vaccines for their employees

McMillan’s Employment & Labour Relations Group advise B.C. clients on vaccination policies in the workplace

As the health risks to British Columbians posed by COVID-19 press on— sustained by the highly contagious Delta variant—the provincial government implemented mandatory vaccinations for workers in long-term-care homes and seniors’ assisted living facilities, effective Oct. 12 and for all workers working in health-authority facilities, by Oct. 26.

On Oct. 5, the Provincial Health Officer, Dr. Bonnie Henry, announced that visitors to certain health care facilities, including long-term-care homes and seniors’ assisted living facilities, will also have to be fully vaccinated by this month to access these health care facilities.

Other levels of government and companies in the public sector, including Canada’s biggest banks, are following suit, implementing mandatory vaccination policies to protect their employees and comply with Provincial Health Officer Dr. Bonnie Henry’s public health orders.

Most recently, the BC Public Service Agency announced that full vaccination will be mandatory for all public sector employees by Nov. 22, a move that is supported by Dr. Henry.

However, employers in the private sector find themselves in unchartered legal territory and are taking a measured approach. At present, vaccination is not mandated by public health order for private sector employees. Thus, the question private sector employers are grappling with is whether a mandatory vaccination policy is lawful and whether there are any risks associated with mandating vaccination.

As employers contemplate whether or not to impose mandatory vaccination policies, they are seeking legal counsel with their employment and labour lawyer advisors, an action Dr. Henry recommended in an Aug. 12 Covid-19 briefing.

“The reality is that we’re in unprecedented territory when it comes to vaccinations in the workplace,” says Dianne Rideout, McMillan LLP

Partner and Head of the Employment & Labour Practice Group in Vancouver. 

“It’s a grey area, and there are legal risks associated with implementing a mandatory vaccination policy,” she says. “Seeking legal advice is important because you need to understand the implications of the risk and how you can mitigate those risks through the implementation of a proper policy. We have been advising British Columbia employers on mandatory vaccination policies and the risks associated with them. Despite the legal risks, many employers are opting to mandate vaccinations as employees return to the workplace.”

The firm’s Employment & Labour relations associate, Michelle McKinnon, calls attention to the fact that McMillan is a national law firm and many clients require advice across the country on these matters. “These issues differ between provinces, so it’s important to bear that in mind. Clients can come to us and get that advice from a team of Employment & Labour experts across Canada.”

Each employers’ workplace has to be safe for its own specific circumstances, and the risks associated with that particular workplace should be weighed accordingly. Mandatory vaccination policies will need to be responsive to each of those risks and be proportionate in that regard. To justify a mandatory vaccination policy will be dependent on industry, circumstances and context. “HR managers will need to understand what their business needs and risks are, and why they need a policy like this,” reveals McKinnon.

In addition to the vaccination orders surrounding health care, the order for proof of vaccination is required for British Columbia residents 12 years and older to access certain non-essential events, services and businesses, whereby people must have at least one vaccine now and be fully vaccinated by Oct. 24.

This order does not apply to employees employed by the events, services and businesses directly impacted by the order. That said, “employers who provide the events, services and businesses impacted by the order may have a legitimate basis to mandate vaccination for their employees who will be working at the events, services and businesses”, says Rideout. 

McKinnon further explains this scenario: “By implication, employers who provide the events, services and businesses might be better positioned to mandate their employees get vaccinated because they will have direct contact with customers who have to be vaccinated.”

Rideout adds, “If you’re impacted by one of those orders directly, the risks are mostly eliminated because your hand is forced; you’re compelled to oblige. And if you’re not impacted directly, but indirectly, there may be a better basis upon which to say it’s reasonable for the health and safety of the employees to do this.”

Rideout says that for employers who decide to implement such a policy, they recommend consideration be given to the guidance from the BC Human Rights Commissioner with respect to the criteria that a mandatory vaccination policy should meet. “In particular, a mandatory policy should provide for less intrusive alternatives to vaccination and address how employees who are unable to get vaccinated may be accommodated.”

Without a precedent, it’s unclear how a court, or in a human rights context, the BC Human Rights Tribunal, would view a mandatory vaccination policy. The determinations are going to be made if somebody pursues legal action based on a mandatory vaccination policy.

“It may be years before we get any real case law relating to this,” admits Rideout. “On a practical level, I think there are a lot of employers that are accepting the risk of putting in these policies, and the risk may not materialize. We just don’t know yet.”