Workplace vaccine mandates are, in most cases and according to what we have learned, legal and enforceable under Canadian and provincial laws. Here’s a deeper look into this.
Two years into the COVID-19 pandemic, many Canadian workplaces are implementing vaccine mandates, requiring employees to show proof of vaccination and face repercussions if they choose not to do so. This appears to be the future of the Canadian workplace.
These mandates can be controversial. While a vast majority of people have willingly gotten their jabs in an effort to stop the spread of the virus, a small but vocal minority is refusing to get vaccinated, and these people believe that they should have the right to go to work and access public places alongside the vaccinated majority.
Anti-vaxxers are notorious for arguing that vaccine mandates are a violation of rights and freedoms, and they may cite provincial Human Rights Codes or the Canadian Charter of Rights and Freedoms as “proof.”
Are these mandates a violation of these documents? If you run a business, are you at risk of being dragged to the table and accused of a rights violation if you mandate vaccines for your employees? And, as a vaccinated employee, how protected is your workplace against unvaccinated people forcing their way in to sit beside you?
The law is never cut and dry, and there are always grey areas. Individual cases of union employers are playing out in court and seeing different results, but in the case of non-union employers, things are a bit clearer.
Vaccine mandates are, in most cases and according to what we have learned, legal and enforceable under Canadian and provincial laws. Here’s a deeper look into this.
Do workplace vaccine mandates contravene the Charter of Rights and Freedoms?
First off, let’s be clear about the difference between the Human Rights Code and the Canadian Charter of Rights and Freedoms. Using the example of Ontario, according to the Ontario Human Rights Commission (OHRC), The Charter only applies to the acts and conduct of government, while the Ontario Human Rights Code applies to both private and public sectors.
A CBC article explains that this means a charter challenge to a vaccine mandate could apply only if that mandate were implemented by the state, and only government employees can bring charter challenges directly against their employers. If a business requires employees to get vaccinated because it is following a government rule, an employee can’t challenge the company directly under the -Charter and would have to challenge the government – not the business.
And a CTV article explains that, if someone wanted to argue that a mandate violates their rights under the Charter, they would have to prove that an infringement violates fundamental justice and is “arbitrary, overly broad or grossly disproportionate.” And, because vaccine mandates are in place to protect the health and safety of the public, it would be hard to argue this.
Do workplace vaccine mandates contravene Human Rights Codes?
Continuing with the example of Ontario, in September, 2021, the OHRC published a statement that vaccination requirements put in place by the Ontario Government are “generally permissible” as long as protections are put in place to ensure people who are unable to be vaccinated for Code-related reasons are reasonably accommodated. These apply to “certain higher-risk indoor public settings.”
Those unable to receive the vaccine must provide a written document supplied by a physician, registered nurse extended class, or nurse practitioner stating they are exempt for a medical reason from being fully vaccinated.
Regarding employers, organizations that are not included in the list of settings in which vaccines are required but wish to mandate vaccines are encouraged to follow the same protocol “as their way of meeting the duty to accommodate where needed.”
The OHRC states that personal preferences and singular beliefs are not protected and that a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code.
“While the Code prohibits discrimination based on creed, personal preferences or singular beliefs do not amount to a creed for the purposes of the Code.
“Even if a person could show they were denied a service or employment because of a creed-based belief against vaccinations, the duty to accommodate does not necessarily require they be exempted from vaccine mandates, certification or COVID testing requirements. The duty to accommodate can be limited if it would significantly compromise health and safety amounting to undue hardship – such as during a pandemic.”
Workplace vaccine mandates aren’t forcing you to get vaccinated
As for the popular claim that vaccination mandates are “forced vaccination,” this is reportedly not true under the law. Nobody is being held down and forcibly vaccinated. We are being given a choice to get vaccinated or to go work somewhere else. In the case of government employees mandating employees get vaccinated, again, they are not being forced to get vaccinated. They are being given a choice between getting vaccinated and keeping their jobs and not getting vaccinated and being placed on leave, let go, or possibly given other options like working remotely or taking regular tests, depending on the company.
Samuel E. Trosow, associate professor in the faculty of law and faculty of information and media studies at Western University, told CTV News that one may not like the options, but they are options.
An employer can terminate you for any reason that doesn’t breach the Human Rights Code
Yes, an employer can legally fire you for not being vaccinated, Hena Singh, a lawyer and workplace investigator, told the CBC. Singh said that an employer can terminate someone's employment for any reason as long as it doesn't breach the Human Rights Code. This would be called a “without cause termination,” and they have to give you a severance package, but it’s allowed.
But are vaccine mandates ethical?
Whether vaccine mandates are “ethical” is a popular question, the answer to which depends on each individual’s moral and ethical views. If someone believes that vaccines protect us and others from potentially serious illness, or even death, and that it is our duty to protect those around us – particularly those who legitimately cannot be vaccinated or who have compromised immune systems due to illness or things like cancer treatments – they are more likely to regard such mandates as ethical than someone who believes vaccines are harmful or the coronavirus is a hoax.
The law, however, is not expected to comply with every individual’s ethical or moral standards.
In conclusion, vaccine mandates are, in most cases, legal and enforceable under the law, so people should be prepared to comply or have to make some other choices.
Are workplace vaccine mandates legal in Canada?
