January 4, 2021
Under s.38 of Alberta’s Public Health Act, the government has the power to order “the immunization or re-immunization of persons when there is a public health emergency or epidemic”. To date, this power has never been used, and while the current COVID-19 pandemic meets the criteria for such an order, Premiere Jason Kenney has stated he will not be making the COVID-19 vaccine mandatory in Alberta.
Canadian law has long recognized that the human body ought to be protected from interference by others; section 7 of the Canadian Charter of Rights and Freedoms provides Canadians with protections over life, liberty, and security of the person; and at common law any medical procedure carried out on a person without that person’s consent is considered a battery.
The recent release of a COVID-19 vaccine is welcome news, but it is important to keep in mind that it is not the vaccine that will eradicate this virus, but vaccination. Health Canada estimates that upwards of 80% of the population will need to be vaccinated to achieve herd immunity from COVID-19. Even those who have already been infected with the COVID-19 virus are advised to accept the vaccine to ensure protection as some studies suggest that natural immunity may not last very long. Unfortunately, whether due to the growing movement against vaccinations, concerns over the safety of a vaccine perceived to have been rushed into production, or legitimate health issues preventing people from safely taking the vaccine, there is concern that an insufficient number of Albertans will be vaccinated against COVID-19.
Requiring proof of vaccination against COVID-19 is a step governments, employers, and businesses may be considering. Proof of vaccination compliance has been mandatory in some situations before COVID-19. In Ontario, for example, under the Immunization of School Pupils Act parents must provide proof of immunization (or appropriate exemption documents) for certain diseases before their children can attend school.
However, in the employment context there are additional complexities to be considered before implementing such a requirement. While the benefit of a vaccinated workforce is clear, the ability of an employer to require employees to provide proof of vaccination depends on a variety of factors, and enacting a sweeping policy could put employers offside the Alberta’s Human Rights Act (AHRA).
Employer’s COVID-19 Obligations
Alberta’s Occupational Health and Safety (OHS) legislation requires employers do everything they reasonably can to protect the health and safety of their employees. In the context of COVID-19, this means employers must follow all public health orders, such as mask wearing and limiting gatherings. They must also implement workplace practices that limit the risk of exposure and spread of the virus to employees and members of the public entering their premises. In this respect, requiring that all employees be vaccinated against COVID-19 is arguably prudent.
However, it is unlikely that an employer could make vaccination (or proof of vaccination) against COVID-19 a condition of employment for existing or even new employees under the AHRA which prohibits discrimination against any person on the basis of any enumerated ground defined in the AHRA as:
- Religious beliefs
- Colour, ancestry, place of origin
- Gender, gender identity, gender expression,
- Physical disability
- Mental disability
- Marital status, source of income, family status or sexual orientation
The AHRA makes enforcing public health orders in the employment context difficult in certain circumstances. For example, employee A has a physical or mental disorder as defined by the Act and refuses to wear a facemask. Despite the public health order, this employee cannot simply be terminated for noncompliance. An employer has a duty to accommodate this individual to the point of undue hardship, or otherwise prove that mask wearing is a bona fide occupational requirement. The same applies to a proof of vaccine requirement – an employer would have a duty to accommodate those employees who, on the basis of an enumerated ground, refuse to accept (or cannot safely accept) the vaccination. Accommodations could include having unvaccinated employees work from home or maintaining COVID-19 public health measures for those unvaccinated employees, such a physical distancing and mask wearing.
Nature of the Employment
The nature of the employment is another important consideration. Employers in the health care setting, especially those caring for a vulnerable demographic (such as infants or the elderly) can likely request that employees provide proof of vaccination as a term of employment to work with such patients/clients. It could even be argued that not requiring vaccination in such circumstances constitutes negligence for the employer.
Some employers in the health care setting already “require” (perhaps not in the legal sense) that employees maintain vaccines that are part of the routine immunization schedule, as well as vaccines recommended because of specific occupational risks. Outside of healthcare, other examples include employers in educational settings, institutional or correctional facilities, where there is exposure to animals, and the military.
In these settings it is more likely that up to date vaccination will be considered a bona fide occupational requirement
COVID-19 Vaccination as a Condition of Employment
The ability of an employer to require proof of the COVID-19 vaccination as a condition of employment depends on a number of factors including the nature of the employment, and the individual accommodations required to be made for employees.
- Employers cannot force an employee to accept a vaccination or any kind of medication.
- Employers may be able to make proof vaccination against COVID-19 a condition of entering the workplace provided they allow for legitimate exemptions and accommodations.
- The nature of the employment is a relevant consideration. In any setting where employees are expected to interact with potentially vulnerable individuals, it is likely reasonable to require employees to provide the employer a full immunization history or appropriate exemption documents.
- One option some employers might consider is allowing employees who do not want to get a vaccine to continue working remotely. If remote work is not possible, employers must ensure that their workers continue to follow existing health and safety guidelines in the workplace.
- Employers should be aware of their obligations under the OH&S Act and the AHRA before implementing any requirements concerning employee vaccination.
If you would like more information about the impact of COVID-19 on employers or employees, or if you would like to discuss any other employment matters, please contact any of our Health Law lawyers, or a member of the Carbert Waite Employment Law Group.