Global Pandemic Places Unprecedented Legal Challenges on Employers

As Ottawa offices reopen, local business leaders have been forced to make difficult, once-in-a-lifetime decisions, often with no legal precedent to refer to. A rapidly shifting landscape is further complicating matters.

The most perplexing question facing employers today is whether to mandate vaccines for their employees.

Under Ontario’s Occupational Health and Safety Act employers must take every reasonable precaution for the health and safety of their workers, says Karin Pagé, a partner with Perley-Robertson, Hill & McDougall LLP in Ottawa.

“Traditionally however, we weren’t talking about infectious diseases. So this has required an adjustment, and we really don’t know what the scope of that is in terms of dealing with COVID-19,” she adds.

During the early days of the vaccine rollout last spring, “most employment lawyers probably would have said ‘be careful, because that could be seen as a constructive dismissal. That’s a fundamental change to the terms and conditions of employment.’ There’s still a risk of that. But there’s also a risk on the other side – that if you’re not requiring proof of vaccination, are you taking every reasonable precaution for the health and safety of your staff?” says Pagé.

The situation has also changed considerably in recent months as governments in Ontario and several other Canadian provinces, including Quebec, have moved rapidly to require businesses providing non-essential services to demand proof of vaccination from their customers. 

“But, apart from the federal transportation sector, it doesn’t mandate they must require that of their employees, so there’s still a lot of choice for employers to decide what is necessary and appropriate for their own staff,” says Pagé. 

Employers must decide what constitutes a reasonable request under the circumstances. However “this hasn’t yet been considered by the courts, so we’re really in novel times here, waiting for judicial decisions on what is going to be considered reasonable,” says Pagé.

The decision that employers make will need to be expressed in a formal written policy that contains exemptions for individuals who have a valid reason, such as medical or religious, under Ontario human rights legislation not to be vaccinated. 

Employers who decide to implement a proof of vaccination policy for their employees must also consider the consequences they are willing to impose for non-compliance.

The safer route is to consider imposing a non-disciplinary sanction.  For example, some employers are choosing to only limit the attendance of unvaccinated employees at in-person meetings or social events where physical distancing may be more challenging to maintain.

“That is probably a reasonable compromise because they’re not going to lose their job. They’re going to be able to continue to do their work in a different way,” says Pagé.

Another potential alternative for employers is to require regular testing for COVID-19 in lieu of a mandatory vaccination policy.

However, some employers are willing to go further and say the consequences of a failure to get vaccinated or show proof of vaccination are to put employees on an unpaid leave or terminate their employment.

“It’s a risk as to what the courts will see with that,” says Pagé, who notes that such action by employers might now be viewed more amenably in light of public health guidelines and vaccine passport systems that restrict people from entering certain public spaces without proof of vaccination.

“It’s a decision that needs to be carefully considered,” she stresses.