The likely legal problems with forcing vaccines, and an explanation for why it still seems to be happening.
The cascade of employers taking steps to force their employees to vaccinate is welcomed by many and alarming to many. It is obviously controversial.
I am not taking a position in this article on whether employers should mandate vaccination. Instead, I am describing what I see as the likely legal problems with forcing vaccination on employees. I will also provide an explanation for why it seems to be happening anyway.
The Legal Problems
Myself and other employment lawyers have suggested that most employers are likely not legally allowed to force their employees to get vaccinated. There are several reasons for this:
- It is not generally part of an employee’s contract with the employer.
- It is a substantial invasion of an employee’s privacy. An invasion of privacy of this nature is normally only allowed in emergency situations, or where there is a major risk to other employees or the public.
Consider the current level of public vaccination, current risk to the population, and current provincial government stance on the level of emergency. In this case, forcing employees to get vaccinated is likely only legal in settings such as hospitals and care homes where there is a high level of vulnerability to infection.
So if most employers are probably not allowed to require employees to get vaccinated, why are so many of them suddenly doing it?
To start, employers have a duty to protect the health of their employees and the public. No business wants to be known as the site of a COVID-19 outbreak. These underlying factors obviously make many employers want to require vaccination of their employees. However, employers also have obligations not to breach their employment contracts with employees and to respect employees’ privacy. These competing rights create great difficulty for employers.
Since employment lawyers first suggested that forced vaccination of employees is likely not allowed, some major developments have complicated the issue. The biggest development was the federal government’s announcement in mid-August 2021 that federal public servants and employees in federally regulated industries (such as airlines and banks) must soon be vaccinated to report to work. This requirement will also extend to passengers on interprovincial transportation such as airplanes. The government stepping in with legislation explicitly permitting or requiring vaccination changes the legal landscape considerably. Other developments include private businesses like stadiums announcing that proof of vaccination is or will soon be required for members of the public to attend.
We do not currently know if the federal government’s planned vaccination mandate is legal. And we will not know for certain until after it becomes law and someone challenges it in court. Once it is challenged, the legality of it will depend on slightly different considerations than whether a private non-federal employer can require vaccination of its employees.
Section 7 of the Canadian Charter of Rights and Freedoms guarantees everyone “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Something like requiring vaccination of federal employees and airline passengers is probably a violation of section 7. But it is possibly allowed anyway if:
- it has an objective that is “pressing and substantial”, and
- vaccination is the method which minimally impairs the Charter right.
The last part of the test will be the hardest one for a government to get past, given things like rapid COVID-19 tests as potential alternatives to mandatory vaccination.
Whether private businesses like stadiums can require vaccination of their patrons is also not currently known because it has not been thoroughly challenged. Once again though, determining whether businesses can demand patrons be vaccinated is not necessarily the same as determining whether they can demand employees be vaccinated. There are different laws involved. And, while employees normally must report to work to get paid, the public can choose not to attend private events.
A Likely Explanation
Very recently, several employers have shifted their stance. Before, they were cautious about requiring employees to get vaccinated. Now, they have said vaccination will soon be required.
The initial reluctance of Canadian employers to force vaccination was probably due to sound legal advice that doing so is likely not allowed. The result was likely those employers fearing public criticism for breaking the law if they did require vaccination. Their new-found courage is likely related to the federal government endorsing forced vaccination for federal employees and airline passengers, along with private businesses endorsing it for patrons.
The fact that many employers now plan to require employees to be vaccinated as a condition of employment does not mean it is legal. It means it is currently happening even though it is likely not legal.
Down the road, if the courts find mandatory employee vaccination to be illegal, many employees will already be vaccinated. Companies will say they did not know for sure if requiring vaccination was legal and were just doing their best to protect their employees and the public. This may or may not get them off the hook liability-wise. However, the optics of forcing employees to vaccinate are likely not as bad as they were previously, and employers are more comfortable taking that chance.
I will likely write further on this topic as it develops and once we know more.