Can employers require a Covid vaccine before returning to work?
News 4 minute read

Can employers require a Covid vaccine before returning to work?

Megan Orr | July 8, 2021

Can employers require a Covid vaccine? What about Covid testing? There are a lot of questions about what is required and what is allowed, and we have some answers.

With the majority of Canadian provinces moving into the final stages of their reopening plans, many workplaces are preparing to return to the office. Employees who’ve been working from home for the better (or worse?) part of 16 months are wondering what that means for their health and safety, with 43% of Canadians surveyed being fearful of contracting COVID-19 from coworkers.

Employers have an obligation to keep their employees safe, while employees also have their right to privacy. It’s a fine line between ensuring everyone’s safety and infringing upon human rights.

Can employers require a Covid vaccine before returning to work?

Global News writes that: “Because the federal and provincial governments have so far refrained from making the COVID-19 vaccine mandatory, it’s ‘unlikely’ that workplace policies that do so will stand if tested in court or through arbitration”.

So, can employers require a Covid vaccine? The short answer is no. An organization can make a policy that requests employees be vaccinated against COVID-19, but they will have difficulty enforcing it. 

For certain industries, such as those that work with vulnerable communities or travel internationally regularly, vaccines may be required so that the employee can continue to perform all aspects of their job. For example, an unvaccinated nurse may not be given particular shifts (in the ICU or ER), so while the vaccine may not be a condition of their employment, it may impact job duties.

Naturally, there are exemptions and unvaccinated employees can be required to wear PPE (masks, gloves, etc.) at all times. As always, we recommend speaking to an employment lawyer if you’re unsure whether or not you can (or should) require your employees to be vaccinated. 

Can employers require proof of vaccination?

Again, this may vary depending on your industry. Generally speaking, an employer may ask to see proof but an employee is not required to share any of their private medical information. 

Canadian Lawyer Mag writes that “all provinces have an obligation to ensure the health, safety and welfare of its workers, [but] this must be balanced with the employee’s right to privacy. Employers should evaluate whether implementing a vaccine verification program is integral to providing a safe workplace and ensure that such a program does not unreasonably infringe on an employee’s privacy expectations”.

Can employers require employees to be tested for COVID-19?

Yes. If an employer has reason to believe that any of their employees may have COVID-19 or have been exposed to it, they can require them to be tested and confirmed negative before returning to work. This is particularly true if an employee is unvaccinated, as a means to ensure that they’re still protecting their other employees. 

In fact, Quebec recently implemented a policy for healthcare workers who have refused vaccination that they “must be tested for COVID-19 a minimum of three times a week”. 

If you’re going to enforce vaccination or regular testing, it’s essential to have a clear policy in place. 

Your workplace should create a COVID-19 return to work policy that clearly outlines safety measures and procedures, as well as requirements of both employee and employer, i.e. proof of vaccination, frequent testing, the procedures if someone tests positive for COVID-19. For employees who refuse to sign the policy, there can be a discussion about how being unvaccinated impacts their work (such as modified duties so they are interacting less with others or continuing to work remotely).  

However, Global News writes that “if there is no workable solution, or if the employee has no religious or health grounds for declining to be vaccinated”, there would be what’s called “a frustration of contract” where “employers would likely be able to end the employment contract with limited liability”.

Although the answer to questions like ‘can employers require a Covid vaccine?’ are not black and white, organizations should try to do what’s best to protect their employees. Ensure that you’re following all local health and labour regulations, and consult with a legal professional if you’re unsure of how to approach vaccines and workplace safety.

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