No jab, no job?
Mandatory vaccines at work
Amidst the chaos, one message was consistent over the first 16 months of this pandemic – vaccinations were strongly encouraged but a personal choice, and mandatory vaccines were not being considered. In the last week, we have seen a dramatic shift in the position of our federal government and several provincial governments on mandatory vaccines. As of the time of writing this blog, mandatory vaccines have been announced for all federal government employees and our BC Provincial Government has announced mandatory vaccines for those working in long term care. We have also seen announcements from individual organizations in the public and private sectors that they are implementing mandatory vaccine policies.
Inquiries have been flooding our employment law firm over the last few days as businesses, workers and unions try to figure out their rights and obligations in a world where mandatory vaccines for workplaces may suddenly be on the table. Here are some answers to frequently asked questions:
1. Can a non-vaccinated person be fired because of their vaccination status?
Particularly outside of the government-mandated industries (in BC, long-term care and federal government employees), this is still a risky move for businesses. Refusing a vaccine is unlikely to be accepted as just cause for termination, which means severance pay would be owed. Unvaccinated workers can also expect a tougher time in a job search, which could increase the amount of severance pay due. In a unionized environment, this is even more complex as workers can generally only be fired for just cause.
The biggest risk, however, lies with the reason for refusing the vaccine. A blanket approach for all non-vaccinated workers is bound to fail. There is a group of people who are unable to be vaccinated for medical reasons or due to their religious beliefs. Firing a worker who is in this category could be the basis for a human rights complaint. Our BC Human Rights Tribunal is prioritizing Covid-related complaints and would be likely to take quick action.
2. Can vaccination status be a requirement for hiring?
A blanket requirement to be vaccinated to be eligible for a job is also problematic because it covers people with different reasons for refusing the vaccine. This requirement would discriminate against job applicants who are unable to be vaccinated for medical or religious reasons. Discriminating against a job applicant can the be basis for a human rights complaint, and the BC Human Rights Tribunal may also take quick action on this type of complaint.
3. Should businesses implement a vaccine policy?
Businesses should not jump on the wagon of mandatory vaccination without careful consideration. Mandatory vaccine requirements for some workers in some industries may be appropriate. For other workplaces, it may not make sense. Any policy with a mandatory vaccine must include processes to deal with exceptions for workers who are unable to be vaccinated (as different from those who are unwilling to be vaccinated). These processes should protect the privacy of those unable to be vaccinated as much as possible.
If a business is contemplating a mandatory vaccine, a clear written policy is essential, as well as a communications and employee relations strategy. Give the rapidly changing legal landscape on mandatory vaccines, businesses should also closely monitor any changes, and, as with all things in this pandemic, be prepared to pivot.
This blog is not intended to serve as legal advice, and only provides general information.
Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].
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