Recently, in light of the COVID-19 pandemic, the BC Government has implemented mandatory vaccine policies for healthcare workers. The Order of the Provincial Health Officer is titled, “COVID-19 Vaccination Status Information and Preventive Measures Order” and may be found here. This article aims to clarify healthcare workers’ questions about how these policies affect their legal rights in terms of employment and privacy.

 

Are mandatory vaccination policies legal?

It depends. Mandatory vaccination policies can be held as legal so long as the policies are ‘reasonable,’ and deciding what is reasonable and what is not is highly dependent on the facts of each case and, therefore, can only be decided on a case-by-case basis.

The factors that decision-makers look at to determine what is reasonable, as well as other relevant legal issues, are discussed below.

 

What is a “reasonable” vaccination policy?

A reasonable policy is one that balances stakeholder interests adequately and objectively. Reasonableness is an objective standard and is not based on what the individual thinks is “reasonable”. In deciding whether or not a policy is reasonable, an adjudicator will assess and weigh competing interests such as:

  • nature of the workplace;
  • expert/scientific evidence;
  • effectiveness of the policy;
  • intrusiveness of the policy;
  • employment agreements;
  • legislative requirements;
  • collective agreements (in unionized workplaces); and
  • the legitimate business interests of the employer.

In a healthcare setting, there are additional competing interests such as patient safety that must be considered when deciding to implement a mandatory vaccination policy.

Because the implementation of COVID-19 related mandatory vaccination policies is so new, there have yet to be judicial or arbitral decisions about their reasonableness. That being said, there are decisions about influenza vaccination policies that provide some insight into how adjudicators will determine if mandatory COVID-19 vaccinations are reasonable.

 

Nature of the Workplace

Employers will need to evaluate the nature of the workplace and whether or not employees need to receive the COVID-19 vaccine to make the workplace safer for workers and clients. In some workplaces, working remotely, social distancing, wearing masks, and hand washing will be sufficient to mitigate the risk of COVID-19.

However, in a healthcare setting, social distancing and working remotely is not possible, and mask-wearing and hand-washing alone are insufficient to protect workers and clients against COVID-19, a very contagious pathogen.

 

Weighing the Science

In Health Employers Assn. of British Columbia and HSA BC (Influenza Control Program Policy), Re, [2013] BCCAAA No 138 (Diebolt) (a copy of the decision can be found here), the union argued that a policy requiring individuals to either vaccinate or wear a mask was unreasonable. In making his decision, Arbitrator Diebold relied on scientific evidence from three medical experts put forward from the union and two medical experts put forward from the employer and determined that the policy was:

  • not unreasonable when weighing employer’s interest in policy as patient safety measure against harm to privacy interest of healthcare workers and applying a proportionality test respecting intrusion;
  • did not violate the BC Human Rights Code, the Freedom of Information and Protection of Privacy Act, or the Canadian Charter of Rights and Freedoms; and
  • was not arbitrary, unfair, or based on irrational considerations and was a valid exercise of management rights.

In Sault Area Hospital and Ontario Nurses’ Association, 2015 CanLII 55643 (Ontario) (a copy of the decision can be found here), a vaccination or mask (“VOM”) policy was found to be unreasonable. Arbitrator Hayes found that there was limited data on the use of masks and respirators to reduce the transmission of influenza and the VOM policy was supported by “scant” evidence.

However, to differentiate, COVID-19 vaccination and masking are supported by a large and growing body of research that supports reduced disease transmission, reduced severity of disease, and protection for vulnerable populations. Given that both of the above decisions were made with heavy reliance on the scientific evidence, it goes to say that it is likely that COVID-19 vaccination policies will be well supported by the scientific and expert evidence.

 

Can I be fired for not getting vaccinated?

An employer can require its employees to disclose their COVID-19 immunization record in order to comply with its occupational health and safety requirements so long as this is reasonable in the circumstances. If your employer terminates your employment for a refusal to follow a reasonable workplace direction, the onus of proof is on the employer to establish that the termination is “with cause”.  Failing this, it is considered a “without cause” termination of employment. To date, the Courts have not yet weighed in on whether termination of employment on such a basis amounts to “with cause” or “without cause”.

The onus to prove “with cause” for breach of a COVID-19 vaccination policy in a healthcare setting will, likely, be less difficult to meet than in other workplaces because of public policy considerations. Healthcare-centered environments, by nature, cater to vulnerable populations. In order to keep those populations safe from the detrimental effects of COVID-19 and to protect the limited resources available in those environments, it is likely that the policies will be upheld as reasonable and individuals who choose not to get vaccinated will lose their privileges to work at these sites.

An additional risk for healthcare employees who choose to not get vaccinated against COVID-19 is that because the provincial government has mandated vaccination for healthcare employees, the employer may claim frustration of contract.

 

I have a medical condition and/or religious belief. Can I get an exemption from the vaccination policy?

Under the BC Human Rights Code, an employer cannot refuse to employ or refuse to continue to employ a person because of a protected characteristic under the Code, such as a (medical) disability or religion. Examples of medical exemptions may include:

  • a person who has a severe allergic reaction to a vaccine or ingredient in the vaccine (usually anaphylaxis); or
  • a person who has a medical condition, disease, or takes a medication that reacts with the vaccine or its ingredients.

A person can attempt to obtain a religious exemption if they are part of a recognized religious group that is opposed to vaccination. However, a personal preference that is unrelated to a protected characteristic does not create a claim before the Human Rights Tribunal.

The Office of the Human Rights Commission issued a policy guidance document called “A human rights approach to proof of vaccination during the COVID-19 pandemic,” which can be found here. It states, in part, that there are circumstances where vaccination status policies are appropriate if other less intrusive means of preventing COVID-19 transmission are inadequate for the setting and if due consideration is given to the human rights of everyone involved. In its guideline, the Office of the Human Rights Commission emphasizes that “[n]o one’s safety should be put at risk because of others’ personal choices not to receive a vaccine. Just as importantly, no one should experience harassment or unjustifiable discrimination when there are effective alternatives to vaccination status policies.”

The policy guidance goes on to say that “…where a person chooses not to get vaccinated as a matter of personal preference, especially where that choice is based on misinformation or misunderstandings of scientific information, does not have a ground for a human rights complaint against a duty bearer implementing a vaccination status policy.”

 

What about my privacy rights?

The employer’s obligation to ensure the health and safety of its employees and the public must be balanced with the employee’s right to privacy. Employers should notify employees about why information is being collected, and collect only the information necessary to achieve that purpose.  Employers must also keep any employee vaccine information confidential, protect any such information, and not share the information with others without the employee’s consent. Employers should not use the information for any purpose other than that for which it was collected.

DISCLAIMER: The content of this article, and this website generally, is not intended as legal advice and cannot be relied upon as legal advice.  To provide legal advice on your problem, a lawyer must first understand your specific situation.

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