The Sharp End Of A Needle

 “We had Big Pharma against us, we had the media against us, we had

Big Tech against us. We had a lot of dishonesty against us,"

                                                                                                                            Donald J. Trump

Here we find ourselves, 9 or so months into the COVID-19 pandemic, and there seems to be a vaccine (or three) on the horizon.  It seems that the citizens of the Great White North will be able to start lining up to be jabbed in the shoulder (twice!) beginning sometime in the first quarter of 2021.

The question which employers are beginning to ask is, “Can we compel our employees to receive the vaccination?”  There are various threads to that conversation, but the answer is almost always going to be “no”.

Any discussion about compelling an employee to receive a vaccination (or, for that matter, any kind of medical procedure) always has to start with the simple fact that employers cannot force employees to do anything they don’t want to do.  That may seem like a self-evident concept, but it’s worth recognizing… an employer cannot show up at an uncooperative employee’s home, roust her out, drive her to a pharmacy, and physically force her to sit still to receive a shot.

Which means that the real question employers should be asking themselves is…

“If we want our employees to get the vaccination and they refuse, what can we do about it?” 

In employment law terms, that question translates to…

“If we terminate the uncooperative employee, will we be facing liability for having done so?”

In general, employers simply have to accept the fact that, in the huge majority of employment scenarios, an employee terminated for refusing a vaccination is going to be able to successfully pursue statutory and common law damages for wrongful dismissal.  And, he/she is also going to be able to successfully advance a human rights complaint and obtain additional damages.

That’s just the reality of the legal system in which employers operate in B.C.  It’s one which is heavily guided by the B.C. Human Rights Code and, in some limited employment settings, by the Charter of Rights and Freedoms

The same reasoning and outcomes apply if an employer refuses to hire an applicant because he/she refuses (as a condition of employment) to receive a vaccination.

It is conceivable that there are some employment situations – in highly sensitive environments – in which the requirement can be imposed that employees/candidates for hire accept a vaccination as a condition of employment.  I don’t happen to know of any where this is presently the case, but I don’t see it as an impossibility that there are some working environments in which the risk of transmission of a virus is so great that all employees must accept a range of vaccinations.

In human rights terms, that would be a situation in which becoming vaccinated amounts to a “bona fide occupational requirement”.  In effect, a “bfor” overrides the normally applicable human rights restrictions on an employer’s actions vis-à-vis its employees. 

Do note, however, that only the tiniest percentage of workplaces would have any hope of demonstrating that it is a “bfor” for its employees to receive a vaccination.  The chances are slim that your business is one of them.

Is That The End of the Discussion?

That isn’t necessarily where the conversation ends, because termination of the employment relationship (or rejection of applicants) isn’t the only scenario in which the vaccination topic can be raised. 

I’ve seen some online discussion about a situation in which employers - concerned about satisfying their statutory obligation to ensure the health and safety of their employees - refuse to allow employees to return to work (or continue working) until either the COVID pandemic passes or the employee agrees to receive a vaccination.  I could, for instance, see this practice arising in the long-term residential care setting.

Personally, I feel that this scenario really boils down to the same question of whether the employer will face liability for having imposed the COVID-related restriction.  In all likelihood, the employee alleging that the employer’s refusal to allow him/her to work amounts to a constructive dismissal or discrimination would be successful and damages would follow.

This scenario highlights how various aspects of our legal system can clash in challenging times such as these, and it’s easy to imagine that these are confusing situations for human resources professionals.  On the one hand, our Human Rights Code serves to protect employees against being forced to accept a vaccination but, on the other hand, the Workers Compensation Act compels employers to ensure the health and safety of their workforce.  So, what are we to do?

The practical reality is that there is usually some middle ground which can satisfy both statutes and, in the present circumstances, that middle ground likely won’t involve compelling employees to accept a vaccination.  Except in the tiniest percentage of employment settings, that is.

So then, what is my advice to employers?  It boils down to these three basic premises…

  1. Unless your business falls into that tiniest percentage in which there is a tremendous risk posed by potential transmission of a virus, forget about compelling employees to receive a vaccination.
  1. Continue, as you have been doing, to implement mechanisms and procedures to minimize the risk of an outbreak of COVID-19 in your workplace (and to contain it if one occurs).
  1. Give your employees access to information about the pros and cons of voluntarily receiving the COVID vaccination when it becomes available.

With any luck, the majority of your workforce will make the decision to voluntarily receive the vaccination, and the whole question of compelling them to do so will be rendered moot.

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This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.

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