Can employers require their employees to get vaccinated?
As national vaccination rates climb and Canada slowly opens its doors, our clients and candidates are increasingly asking about returning to the workplace. When and how to return? Do we need to return at all? And if so, how can we do so safely?
Safety is top of mind for employers and employees when it comes to returning to the workplace. After more than a year working from home, many employees are hoping to stay put—at least some of the time—and it’s not only for convenience, but also security. According to a recent KPMG survey, 77 per cent of respondents want to work in a hybrid model, while 72 per cent worry about taking public transit and 68 per cent are concerned about contracting COVID from colleagues coming to work sick or asymptomatic.
As an employer, when it comes to COVID-19 and the health and safety of your on-site employees, there are many established protocols to follow. But what about vaccines?
Can you require on-site employees to be vaccinated?
The answer is almost always no. You can’t force an employee to do something to their body against their will as it could contravene federal or provincial human rights legislation, especially if the employee objects to vaccination on the basis of either religion or because of a documented disability such as a prior allergic reaction to a vaccine.
At this point, the only province to mandate vaccination for on-site employees (or proof of at least three screening tests per week) is Quebec and only for health care and social services workers. The federal government hasn’t done so, nor has the government of Ontario.
Can you ask on-site employees if they’ve been vaccinated?
Again, the answer is almost always no because of privacy legislation. As an employer, you can’t store any medical information about your employees unless it’s specifically related to them performing their role. This means, if you’re asking whether an employee has been vaccinated, the question must be tied to the job itself (e.g., if the employee works directly with vulnerable populations in a medical or social service setting). You can’t ask for confirmation of vaccination if it’s just for your peace of mind.
But what about the employee’s right to a safe workplace? Shouldn’t they be allowed to confirm that everyone is vaccinated before they head back to the office?
Broadly speaking, employers have an obligation to maintain a safe workplace. However, this obligation must be balanced with employees’ rights to privacy. This means, employers can’t require employees to disclose their vaccination status (which is private personal health information) without their consent. As long as the employer is maintaining appropriate safety measures, it’s reasonable that they can ask employees to return to on-site work. Employees with concerns for their health, or a strong preference for working from home, should express their concerns and their goals to their employer and look for the ideal work setup for them, based on their role.
Legislation related to COVID-19 and the workplace is being updated frequently and varies according to province and sector. Stay tuned for more information about hybrid workplace best practices, incentivizing vaccinations, and more.