Vaccination policies in workplaces: To mandate, or not to mandate

COVID-19 has imposed new and sometimes challenging obligations on employers. Employers have become very familiar with COVID-19 safety plans, work from home, masking, hand sanitizing and social distancing. All employers have the obligation to maintain the health and safety of their employees.

Can employers implement a mandatory vaccine policy in the wake of COVID-19?

The law is simply not clear. The discussion is somewhat premature, as it will take months before the general public has access to the vaccine.

Mandatory vaccination is not without precedent in Canada. Mandatory vaccination requirements are imposed by law in Ontario and New Brunswick in the public school setting,^[1] where parents or guardians have to provide proof of vaccination, unless strict medical or religious/reasons of conscience reasons are provided. These two exceptions: medical contraindications or religion/reasons of conscience.^[2]

In the workplace, the issue has been frequently litigated in the healthcare setting, where unions have challenged mandatory vaccination policies or policies such as "vaccine or mask" against seasonal influenza as infringing on the collective agreement. The case law is inconsistent.

Much will depend on the leadership of provincial and territorial medical officers of health. To date, Ontario, Alberta and BC have all indicated that they will not mandate vaccination, even in healthcare settings. Nonetheless, employers may have more flexibility than they think.

Mandatory Vaccination Policies Upheld in Some Cases

In a 2013 decision, a BC arbitrator upheld a policy that required employees to wear a mask or provide proof of vaccination against the seasonal flu. The "Vaccine Or Mask" (VOM) Policy had been implemented in response to the low rates of immunization achieved through voluntary vaccination campaigns. The VOM Policy also stated that an individual found to be non-compliant may be "subject to remedial and/or disciplinary action up to and including termination of employment, cancellation of contract and/or revocation of privileges."

Interesting, the VOM Policy also imposed the same requirement on visitors, although it is unclear how vaccination records were verified with respect to casual visitors.

The union, Health Sciences Association, brought a grievance, alleging that the policy was not reasonably necessary. The union also alleged that the policy contravened British Columbia's Human Rights Code,^[3] the Canadian Charter of Rights and Freedoms (the "Charter")^[4] and the Freedom of Information and Protection of Privacy Act.^[5]

The arbitrator found that the VOM Policy was reasonable for the following reasons;

1. Expert evidence weighed in favour of the fact that immunization of health care workers reduced transmission of the flu to patients;
2. Based on expert evidence, masking had a patient-safety purpose and effect and sufficiently accommodated health care workers who conscientiously objected to vaccination;
3. The VOM Policy was not discriminatory, as it did not require immunization. Employees had an option to wear a mask instead;
4. The British Columbia Centre for Disease Control ("BCDC") had endorsed the employer's policy in 2012; and
5. VOM Policies were common.^[6]

The arbitrator also found that the VOM Policy would also meet any Charter challenges, if the Charter actually applied.

In Ontario, an arbitrator upheld a mandatory vaccination requirement imposed by the North Bay General Hospital on nurses during a widespread influenza outbreak in North Bay community.^[7] Several nurses refused and were placed on an unpaid leave of absence because they had refused to be vaccinated against the flu. The union grieved. The collective agreement had specific provisions dealing with vaccinations during an active outbreak. The Ministry of Health had made a recommendation to the North Bay General Hospital to implement its influenza measures. The arbitrator therefore dismissed the union's grievances.

Mandatory Vaccination Policy not upheld in other cases

Arbitrators have also found mandatory vaccination policies to be unreasonable. In the 2015 decision Sault Area Hospital and Ontario Nurses' Association, the arbitrator found that the Sault Area Hospital's VOM Policy attempted to coerce flu immunization and thereby undermined an employee's established right under the collective agreement to refuse vaccination.^[8]

The arbitrator stated that the requirement that a health care worker either be vaccinated or wear a mask made a significant demand on employees who exercised their right not to be vaccinated.

The arbitrator also held that the VOM Policy was unreasonable as the scientific evidence available was insufficient to require employees to wear masks for up to six months every year.

As in St. Peter's Health System v CUPE, Local 778, the arbitrator noted that the VOM Policy had not been mandated by a medical officer of health conferred authority by statute.^[9] In addition, the College of Nurses had not required nurses to vaccinate against the flu as a professional standard, nor had other provincial regulatory bodies of health care workers.

The arbitrator took issue with the scant scientific evidence and inconsistent expert opinions on the efficacy of masks in reducing virus transmission. The arbitrator stated the following:

To review the labour relations implications of the VOM Policy does not disregard or discount the medical expertise. It simply recognizes that the medical expertise has a different focus that is incomplete for the purposes of the legal question at issue. While important in assessing what is reasonable, the medical expertise is not controlling in and of itself because it does not engage the labour/human rights/privacy expertise that balances employee rights with scientific information. . . .

It is very likely that the science will evolve and opinions about the prevention and control of influenza disease may coalesce into more of a consensus than has been achieved to date.

In the more recent 2018 decision, St. Michael's Hospital v Ontario Nurses' Association, an arbitrator once again found a VOM Policy to be unreasonable for a lack of scientific evidence in favour of masks.^[10] The arbitrator characterized the issue in the following manner:

[The question is] whether the evidence supports the conclusion that the use of surgical or procedural masks, worn by unvaccinated [healthcare workers] for some or all of the flu season, actually results in reduction of harm to patients? Does it prevent the transmission of illness? Does it save lives? If the VOM policy prevented patient illness and saved patient lives, its reasonableness would be difficult to challenge.

As was the case in Sault Area Hospital, the arbitrator held that the evidence supporting a masking mandate was "insufficient, inadequate, and completely unpersuasive." The arbitrator found that masks were not an effective means of source control to stop the transmission of the flu. The arbitrator also held that there was a low risk of asymptomatic transmission.

Conclusion

The case law has been developed in the context of seasonal influenza, where efficacy can vary between 20 to 60%.^[11] Preliminary evidence suggests that the COVID-19 vaccines are over 90% effective.^[12] COVID-19 is estimated to be roughly ten (10) times more lethal than the seasonal influenza.^[13] There is significant evidence that mask policies significantly lower disease spread.^[14]

It is our opinion that Sault Area Hospital and St. Michael's Hospital would be decided differently today in the context of the COVID-19 pandemic, given current public health mask mandates and the established asymptomatic transmission of COVID-19.

The healthcare setting is clearly a high risk setting, both for healthcare practitioners and patients.

What about other settings, such as amateur and professional sports, the hospitality industry, mass transportation, or live entertainment?

The CEO of Australian airline Qantas has already indicated that passengers will have to provide proof of COVID-19 vaccination, subject to medical exemptions.^[15] The Netherlands is debating what it terms "indirect vaccination obligation", i.e. certain activities and locations would be off-limits to individuals without proof of vaccination.^[16]

In our opinion, much will depend on the evidence about how much vaccination protects the risk of transmission of disease to others. Currently, the testing has focused on the efficacy of the vaccination on protecting the recipient of the vaccine from disease. If evidence grows that vaccination also protects against transmission of disease to others, there will be a very strong legal argument that employers should be able to insist on mandatory vaccination of employees and visitors to the workplace, absent a legally-protected exemption. Unionized employers need to work closely with union representatives to implement any kind of vaccination policy.

Most importantly, our public health authorities need to issue clear directives regarding vaccination. The 1918 influenza killed approximately 50 million worldwide, with approximately 55,000 in Canada and 675,000 in the United States. We do not want to replicate that tragedy a century later.

In addition, P.A. Neena Gupta shared her thoughts in a recent CBC News interview - Can employers make the COVID-19 vaccine mandatory? The law isn't clear.