Last year, there was much discussion on whether or not employers could legally implement mandatory vaccination policies in Canada. In the first part of 2021, COVID-19 vaccines were not readily available to all Canadians, and most employers had not implanted mandatory vaccination policies yet. By August 2021, most Canadian adults had been given the opportunity to become fully vaccinated. In this context, on August 13, 2021, the Federal Government of Canada announced the requirement for all federal public servants to be fully vaccinated by the end of September 2021. The Federal Government also instituted mandatory vaccination requirements for all employees in the federally regulated air, rail and marine transportation sectors by October 2021, while at the same time, requiring vaccination to travel by air or train effective November 2021. After the Federal government took the lead, many Canadian employers followed suit, and there was a rapid influx of mandatory vaccination policies implemented throughout the country in both public and private sectors (including unionized and non-unionized workforces).
There are now several Canadian labour arbitration decisions that consider whether or not mandatory vaccination policies in the unionized context are reasonable and justified. To date, most of these decisions have held that mandatory vaccination policies are reasonable and justified, illustrating an overwhelming consensus that employers can legally implement significant health and safety protections in the context of the COVID-19 pandemic. However, not all policies have been upheld in arbitral law. For instance, in one circumstance a labour arbitrator found a mandatory policy to be unreasonable given that workers could perform work remotely, and other measures (such as testing) could be effective in the absence of vaccination. In all circumstances the context of the workplace, along with the alternative mechanisms in the related policy, will be considered when evaluating the reasonableness of a particular policy.
This article will provide a case law update regarding the legality of vaccination policies in Canadian workplaces, updating a previous article written prior to the emergence of these decisions. While these recent decisions are directly relevant for unionized workplaces, the principles set out are useful for all employers, as the courts may consider similar principles when evaluating mandatory vaccination policies in relevant matters (such as wrongful dismissal claims arising out of the implementation of such policies). The current case law suggests that employers can implement protections against COVID-19 in the workplace, but such protections must be reasonable, balanced and relevant to the particular workplace. In the context of the COVID-19 pandemic, employers must continually consider the ongoing changes in public health direction as well as case law, as matters have continued to evolve and change quickly throughout the last two years, and so should each employers’ approach relating to health and safety measures (including mandatory vaccination policies).