On August 5, 2021, Prime Minister Justin Trudeau announced that the Government of Canada is considering whether to require employees in the federal public service to be vaccinated against COVID-19, as well as workers in certain federally regulated industries who are subject to the Canada Labour Code, such as airlines and banking.
To be clear, the Prime Minister announced that he has asked the Clerk of the Privy Council to look into mandatory vaccinations for such workers, and it is uncertain whether the federal government will ultimately implement these requirements.
Nonetheless, if the federal government does begin requiring certain federally regulated workers to be vaccinated against COVID-19, it would likely have significant implications for all federally regulated employers, and potentially provincially regulated employers as well. To fully appreciate these potential implications, it is important to have a basic understanding of the existing law regarding vaccination requirements, including the uncertainty as to whether mandatory vaccination requirements are legally permissible.
The Law Regarding Vaccination Requirements
As previously discussed in the Spring 2021 edition of our In the Know newsletter (available here), employers cannot compel employees to be vaccinated against their will. However, employers can encourage vaccination and can very likely create policies under which employees who are not vaccinated are subject to certain work-related consequences, so long as these are reasonable measures to ensure health and safety that are appropriately tailored to the level of risk in the workplace. For example, employees who are not vaccinated could likely be required to abide by more stringent health and safety requirements, such as use of additional PPE, for the duration of the pandemic.
On the other hand, imposing mandatory vaccination requirements for existing employees will generally create serious legal risk for employers, so long as such vaccinations are not required by law. This is because requiring COVID-19 vaccination as a condition for continued employment could represent a substantial unilateral change to the fundamental terms of an employee’s employment, which would constitute constructive dismissal and expose the employer to substantial liability. Similarly, in the unionized context, such a requirement could exceed management rights and violate an applicable collective agreement.
Furthermore, the more stringent and/or less reasonable that work-related consequences for non-vaccinated employees are based on the level of risk in a particular workplace, the more likely it is that imposing such requirements could constitute constructive dismissal or a violation of a collective agreement.
Notably, there would be no risk of constructive dismissal where a new employee agrees to COVID-19 related vaccination requirements in a written employment agreement, prior to commencing their employment. However, it remains uncertain whether the courts may refuse to enforce mandatory vaccination requirements based on other grounds.
Crucially, any vaccination-related requirements that employers impose are subject to their duty to provide reasonable accommodations to any employees who cannot get vaccinated for reasons related to protected grounds under human rights legislation, such as disability or religion/creed, up to the point of undue hardship.
If the federal government implements a mandatory vaccination requirement for some or all federally regulated workers, it will obviously have significant implications for affected employers, which may vary depending on how such requirements are legislated. For example, affected employers may see a substantial rise in vaccination among their employees, reducing the risk of COVID-19 transmission in the workplace and improving health and safety. On the other hand, affected employers could also see an increase in resignations from employees who are not willing to comply with the vaccination requirement for reasons that are not related to protected grounds under human rights legislation.
Nonetheless, there may also be significant implications for any federally regulated employers in sectors that are not subject to a legislated vaccination requirement, as well as provincially regulated employers. If the federal government enacts legislation requiring some workers to be vaccinated against COVID-19, it may normalize such requirements and make other employees more willing to accept and comply with workplace policies requiring vaccination. Moreover, legislated vaccination requirements could impact how courts assess the reasonableness of workplace vaccination policies, and embolden provincial governments and other regulatory bodies to enact their own vaccination requirements.
Ultimately, however, it remains to be seen whether the federal government will enact mandatory vaccination requirements, which federally regulated employees the requirements would apply to, and if there would be any exemptions to such requirements.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.