When it comes to businesses implementing mandatory vaccination policies, experts say safety outweighs privacy in the context of the pandemic.
In recent weeks, many private businesses have announced plans to implement vaccination polices for staff, requiring them to be vaccinated against COVID-19.
The decisions have led many people, including some employees at the affected workplaces, to suggest the policies are a violation of employees’ privacy and/or human rights.
Emmett Macfarlane, associate professor of political science at the University of Waterloo, said the evidence is “overwhelmingly clear” that COVID-19 vaccines dramatically reduce not only the risk to the individual who has been vaccinated and the severity of the virus if they get it, but also the person’s chances of transmitting it to other people.
“So what people claiming rights in this context are claiming is actually a right to risk other people’s health and safety and that’s not how rights work,” said Macfarlane.
“So vaccine mandates are more rights enhancing than they are rights infringing.”
Individuals who choose not to get the vaccine for personal preferences or singular beliefs are not protected under the Human Rights Code, states a Sept. 22 policy paper released by the Ontario Human Rights Commission (OHRC).
Provided protections are put in place to make sure people who are unable to be vaccinated are “reasonably accommodated,” the OHRC takes the position that mandating and requiring proof of vaccination to protect people at work is “generally permissible” under the code.
The OHRC states while the decision to get vaccinated is voluntary, “a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the code.”
The commission also states that even if an individual can show they have been denied service or employment, “the duty to accommodate does not necessarily require they be exempted from vaccine mandates, certification or COVID testing requirements.
“The duty to accommodate can be limited if it would significantly compromise health and safety amounting to undue hardship – such as during a pandemic.”
In terms of legal hurdles employers face in implementing these policies, Eva Lane, associate lawyer of employment and civil litigations at SV Law in Elora, said in asking an employee to get vaccinated, employers are requiring them to undergo a medical procedure which is generally seen by the law as an invasion of privacy.
“But for this particular vaccine, for the situation with the pandemic, there are other things that balance out that invasion of privacy – the primary one being safety,” she explained.
“So for an employer that’s mandating vaccines, they’d usually weigh safety versus privacy, and typically when it comes to employers and workplaces, safety will win out because employers have that duty to provide a safe workplace,” she explained, adding it’s a requirement under the Occupational Health and Safety Act.
Heather MacDougall, employment lawyer at Nelson, Watson Professional Corporation in Guelph, agreed but said employers also have obligations to their employees under the Human Rights Code.
“On a wide-scale basis, you’ve got an obligation to make sure everyone is working in a safe environment, and then on an individualized basis, you have particular rights and responsibilities of employees and employers towards each other with respect to the code.”
However, both Lane and Macfarlane said while a vaccine mandate might arguably be a limit on an individual’s rights, it’s not the same as forcible injection or forced medical treatment.
“It’s important to recognize you don’t have a right to a particular job, you don’t have an actual unlimited right to go to a restaurant or a movie theatre,” Macfarlane explained.
“And the reason you don’t have an unlimited right to do things is because you don’t have a right to put other people’s rights at risk.”
Lane also noted many lawyers, like herself, haven’t received any guidance on vaccination policies from courts.
At this point, many lawyers are guiding employees based on general principles without specific guidance from case law or legislation.
Providing accommodations
An important factor employers need to consider when implementing the policy, Lane explained, is providing accommodations for case-specific human rights exemptions.
“It’s so nuanced and just how much safety trumps privacy is going to depend on the workplace,” she added.
When it comes to congregate workplaces and types of workplaces where employees are in close contact and work can’t be done remotely, it’s going to be easier to justify the invasion of privacy, Lane explained.
However, on the other end of the spectrum, she noted, there may be office environments where vaccinations will be required for employees but if they refuse, the consequences may not be as severe.
“It’s going to be maybe remote work, maybe PPE, maybe a leave of absence, it’s not necessarily going to be vaccination or termination,” she explained, adding it will likely vary between unionized and non-unionized workplaces.
“Employers that don’t have a unionized workforce are going to have a broader power to enforce and really enforcement can be up to the point of termination.
“So, there will be certain circumstances where if an employee refuses to get vaccinated or refuses to confirm that they’re vaccinated, termination is going to be appropriate.”
Lane said assuming there’s a policy in place, an employer does have the right to terminate an employee that doesn’t comply, but it’s not something you can “spring on an employee once you realize they’re not vaccinated.”
“You can probably terminate an employee without cause if they refuse to be vaccinated and assuming that that consequence has been communicated clearly to the employee,” she explained.
Macfarlane noted there can be a responsibility on employers to try to accommodate people when imposing vaccine measures, but in some circumstances “it should just be a flat-out job requirement to be vaccinated,” which he referenced specifically to long-term care facilities, health care workers and public schools.
He added there may also be some contexts where an alternative like vaccine education isn’t sufficient.
“It’s going to be properly a job requirement to be vaccinated because if you have to work with other people, particularly if you’re interacting with vulnerable people, some accommodations just aren’t going to be enough,” said Macfarlane.
Policy exemptions
In terms of human rights, the only two exemptions that would apply to vaccine mandates are disability and religion, Lane explained.
“Quite frankly, both of those exemptions are going to be rare, so an employee would not be able to challenge a policy because they don’t want to get the vaccine,” she said.
“If it’s a personal preference, that’s not going to fall under any human rights legislation.”
Lane added, “When I say disability, what I gather from public health, is that the circumstances are so narrow that so few medical exemptions that would exempt you from the vaccine, that it would be extremely rare for that to be actually a legitimate exemption.”
She said if an employer implemented a vaccination policy with no room for accommodations for individuals with a legitimate exemption, that could potentially be ruled as a human rights violation.
“If you had an employee who was genuinely allergic, had a certified allergy from a physician who treats them and the employer is not making any exceptions for that, that would be a good example of a human rights violation,” Lane explained.
Macfarlane said a rights challenge is very unlikely to be successful in the context of the pandemic so long as the vaccination policy is properly crafted to include an exemption or accommodation for people that are unable to be vaccinated due to health risks or religion – “but that’s going to be very rare.”
Echoing Lane, he said a policy challenge wouldn’t hold up, as businesses have a legal obligation to ensure the health and safety of their employees and customers.
“There is arguably more of a legal onus for private businesses to implement vaccine mandates than there would be a legal onus for them to not do so,” he explained.
“I don’t know that not getting vaccinated is going to amount to cause. I think what is more likely that you are going to see people being placed on unpaid leave,” MacDougall said of how employers will handle cases where employees refuse to get vaccinated.
No legal basis for personal preference
Lane said her office has been receiving calls about vaccination policies, but mainly from people who don’t want to get the vaccine.
“So not so much people who can’t, but people who don’t want to,” she said.
Lane said from her understanding, most lawyers in the area aren’t taking on cases from individuals who don’t want to get vaccinated.
“There seems to just be a general sense that if you want to be exempt, you can go to a lawyer and they can bring some kind of challenge and make you exempt,” she explained.
“And quite frankly, there’s no real legal basis for that if it’s just a personal preference.”
As with Lane, MacDougall said lawyers have little guidance, but as she understands it, as long as an employer has built in accommodations for those exempt for medical or religious reasons, it’s not a violation.
“No one is forcing you to show up on a certain date and be vaccinated. They’re saying it’s required and if you choose not to, you have these options. There’s a distinction there that I think is under-appreciated,” said MacDougall.
She added there’s been a “significant amount of blurring” between what is actually protected as a vaccine exemption under the Human Rights Code and people not being vaccinated for personal reasons.
“There’s no protection just because you don’t believe in vaccines,” she explained.
“You have to have either a medical reason on why you can’t be vaccinated or a religious belief that says because of my religious belief I am not going to be vaccinated.
“Not trusting the science is not a code-protected ground.”
Lane said when it comes to the calls she’s been receiving from employers looking to put in mandates, most have been overly cautious about the steps they can take.
For employers, the advice she’s been giving, which she noted is context dependent, is that the risks of not having a policy outweigh the risks of having one.
“If you don’t, and somebody in the workplace gets COVID or somebody’s family member gets COVID and dies or is severely ill and you didn’t put in place a good policy, then potentially the employer’s at risk of a negligence action,” she explained.
“Whereas if you do put in place a policy, for most non-unionized workplaces, you’re just going to have a couple of employees who will be unhappy and really the most litigious thing likely to happen is a human rights complaint.”
