By Jason Beeho, August 23, 2021

Employers are implementing mandatory vaccination protocols – Can they do that?

The short answer is yes.

In recent days, we have seen the Federal government announce that – subject only to limited exceptions – all of its public service employees must be fully vaccinated. The Ontario provincial government quickly followed suit with a similar pronouncement, as did the City of Toronto. So has the TTC, and – as at this writing – numerous universities and four of Canada’s major banks.

Although the issue has yet to be put before the courts, there is every reason to believe that such policies – provided that they are properly implemented and allow for appropriate exceptions – are perfectly lawful.

More specifically, exceptions must be made for employees who present valid medical reasons for remaining unvaccinated. In such circumstances, human rights legislation requires that accommodations be made – which, depending upon the circumstances, may include, for example, requiring the employee to present a current “negative” COVID-19 test result as a condition of attending at the workplace, providing a work-from-home arrangement, or placing the worker on a leave of absence.

Ontario employers are bound by strict occupational health and safety obligations, which include taking “every precaution reasonable in the circumstances for the protection of a worker.” And although there is certainly not perfect consensus on the issue, the prevailing wisdom holds that COVID vaccine is safe and effective. Public health authorities encourage vaccination, and caution against the potential impact of a “fourth wave” and variant strains of the virus. Moreover, the vaccine is readily available.

In all of the circumstances, it follows that employers can lawfully and legitimately insist upon proof of vaccination as part of their occupational health and safety compliance. 

With many businesses planning for a return to “normal” (or “near-normal”) on-site operations this September, employees should expect their employers to follow the lead that has now been set by government and some of the country’s largest institutions. 

Unless and until the courts say otherwise (which is unlikely), mandatory vaccination policies are on their way to becoming the “new normal” for Ontario workplaces.