Vaccine Requirements Ending? What it means for employees' rights and employer policies across Canada

Lenczner Slaght's Amy Sherrard on the future of vaccine mandates & their impact on Canada's workers

COVID-19 vaccine requirements imposed by the Canadian government, the provinces, and individual employers have been the subjects of much controversy, uncertainty, and litigation. Now that the pandemic is entering a new phase, with the economy reopened and travel resuming, many of these so-called “vaccine mandates” are being lifted. Yet for many employers and their workforce across Canada, there still remain questions to be answered about the legality, feasibility, and functionality of these measures. We asked Amy Sherrard, a litigator and appellate lawyer at Lenczner Slaght to explain the legal justification for vaccine mandates, their future, and how businesses and workers alike can navigate the transition to “living with COVID” in the workplace.

What forms have vaccine mandates taken in Canada over the course of the pandemic, and what were the legal hurdles to or burdens of proof for their imposition? What exemptions have been permitted, and why?

It is important to clarify at the outset what we mean when we refer to a “vaccine mandate”. A true vaccine mandate would force or compel an individual to get vaccinated against COVID-19, resulting in fines or even penal sanctions for a failure to do so. These policies do not yet exist in Canada, although a fine system was contemplated (but abandoned) in Québec. Instead, what we have seen are policies put in place which restrict an individual’s ability to access services or engage in certain activities if they are not vaccinated against COVID-19. While commonly described as “vaccine mandates”, it is important to distinguish between these types of policies and true mandates.

For the purposes of this article, we’ll refer to COVID-19 vaccination policies as “vaccine mandates”. Vaccine mandates have become prevalent across Canada in a variety of contexts and the legal hurdles for imposing them depends on the unique circumstances of each case. For example, we have seen vaccine mandates put in place:

  • By the federal government for members of the public, requiring domestic or international travelers to provide proof of vaccination against COVID-19.
  • By the federal government for employers in the transportation sector, requiring their employees to be fully vaccinated against COVID-19.
  • By provincial governments for members of the public, requiring proof of vaccination against COVID-19 to engage in certain activities such as indoor dining.
  • By public or quasi-public institutions for example, universities requiring students to be vaccinated.
  • By employers across Canada, requiring employees to be fully vaccinated against COVID-19.

The form of vaccine mandate can vary greatly depending on the context. Some policies require full vaccination with no exceptions, while others provide for alternatives like regular rapid testing (in lieu of vaccination) and/or donning enhanced personal protective equipment (PPE).

Regardless of the specific form, common features amongst all vaccine mandates include exemptions for medical reasons and/or protected grounds under human rights legislation. Medical exemptions are most common and recognize that certain individuals with medical conditions or disabilities may be unable to obtain a COVID-19 vaccination. The purpose of the exemption is to ensure that these individuals are not adversely affected by mandatory vaccination policies.

Have legal challenges to them been successful in showing that they are a violation of Canadians’ Charter rights, or have the courts determined that public health considerations outweighed any concerns?

Legal challenges to vaccine mandates have been largely unsuccessful, most of them being decided in the employment law context (which is discussed below). Most cases outside of the employment law context are still making their way through the court process, with broader challenges to vaccine mandates expected to be heard over the summer and fall of 2022.

In one recent decision, the Ontario Divisional Court upheld McMaster University’s decision to deny vaccination exemption status to four students who argued that the vaccine requirement violated their Christian religious beliefs and that the exemption process violated the principles of procedural fairness. By the time of the hearing, the Applicants had abandoned their argument that the vaccination policy violated their Charter rights. The Court’s decision also did not focus on the validity of the creed exemption, which it noted was an issue better suited for the Ontario Human Rights Tribunal. Instead, the Court upheld McMaster’s procedure for validating the exemption, concluding that there were no breaches of procedural fairness.

Despite the lack of reported decisions outside the employment law context, legal challenges to vaccine mandates based on Charter grounds (especially Section 7 rights to life, liberty, and security of the person) will likely face big hurdles. One such reason is that there is a threshold question of whether vaccine mandates “force” unwanted medical treatment on individuals. As discussed above, most “vaccine mandates” simply restrict activities or access to services. As a result, individuals retain control over their bodily autonomy and, while presenting a difficult choice, it may not amount to coercion sufficient to reach a level of “forced” medical treatment which would violate Section 7.

Another reason is that even if Section 7 rights are violated, it may still be consistent with the principles of fundamental justice. Where vaccination requirements are rationally connected to their objective (protecting the health and safety of others) and are reasonably narrow (by allowing for exemptions in appropriate cases), the consequences of failing to obtain the vaccine (i.e., losing your job or not being able to travel) are unlikely to be sufficiently disproportionate to satisfy a breach of Section 7.

Further still, Section 1 of the Charter would permit the mandate to be upheld if it was a ‘reasonable limit prescribed by law that could be demonstrably justified in a free and democratic society’. Here, the courts would be concerned with overarching public goals and furthering the public interest. Laws enacted during exceptional times like natural disasters, war, and epidemics are more likely to be upheld under Section 1 and given the importance of vaccines for protecting public health, courts may find that vaccine mandates could be saved under Section 1.

What is the current state of vaccine mandates in Canada? Is there currently a sense that large-scale mandates are a thing of the past as we shift from fighting the spread of the virus to “living with COVID”, or are they a tool that the government will keep in its arsenal going forward?

In recent months, government-imposed vaccine mandates have been softened or lifted entirely across Canada.

For example, on June 20, 2022, the federal government lifted its vaccine mandate for travel (it is no longer a requirement to board a plane or train, but vaccination entry requirements into Canada remain in place) as well as employers in the transportation sector. The announcement from the Government of Canada states that the suspension of the mandatory vaccination requirements was informed by several factors including the evolution of the virus, epidemiologic data and modelling, vaccine science and high rates of vaccination across the country.

Similar approaches have been taken at the provincial level, with proof of vaccination policies having been eliminated by most provincial governments in February and March of 2022.

These recent approaches reflect a shift from fighting the spread to “living with COVID”. The statements released by all levels of government seem to confirm that the science-based evidence no longer requires a complete vaccine mandate on a national or provincial level, in large part due to high vaccination levels contributing to a decrease in hospitalizations and stability across the healthcare system. However, because of the unpredictable nature of the COVID-19 virus and its variants, governments at all levels have made it clear that vaccine mandates will remain an available tool should the need arise.

Can private companies institute vaccine mandates on their employees and if so, what penalties are they permitted to impose on those that do not comply? Do employees have the legal right to refuse to be vaccinated, or to insist upon alternative working arrangements? What are the health and safety obligations that employers have to protect their workers?

Private companies are entitled to implement vaccine mandates in the workplace, even after provincial and federal governments have softened or lifted their own mandates.

Vaccine mandates in workplaces have been the subject of frequent litigation, especially in the unionized workforce. Most vaccine policies require proof of full vaccination, with unpaid leaves or terminations of employment as consequences of non-compliance. Some policies offer alternatives, such as regular rapid testing and/or donning enhanced PPE. All of them contain exemptions for medical and/or human rights grounds.

Overall, the trends in the case law demonstrate that vaccination mandates will generally be upheld:

  • Injunction proceedings brought by employees to suspend vaccine mandates (and their consequences) while arbitrations about the merits of the policy were underway were dismissed by courts, holding that the applicants would not suffer irreparable harm because any loss of employment due to the policy could be compensated by money.
  • Vaccine mandates which required disclosure of vaccination status were held not to violate privacy rights because the mandates could not be upheld without reasonable disclosure of personal health information.
  • Vaccine mandates in the unionized context have largely been upheld as reasonable and necessary in the workplace. This is particularly the case where employees are required to be on site in working conditions where alternative measures (such as social distancing or rapid testing) are inadequate or where there are vulnerable populations / high risk settings. The reasons of several decisions recognize that employers have an obligation to protect the health and safety of its workforce, which often outweighs an individual’s concern about vaccination. In terms of consequences, most policies resulted in unpaid leaves, but some contemplated termination of employment. Where termination was an automatic penalty, arbitrators have often rejected this as unreasonable. Where termination was only a potential penalty, other arbitrators have concluded this is reasonable, noting that whether a termination was appropriate in an individual case would depend on the specific facts.

Although the cases thus far have been vaccine mandate friendly, as the fight against COVID-19 evolves, so too must the content of vaccination policies. A review of recent arbitration decisions demonstrates that a “contextual approach” is evolving, with a focus on whether the requirements are reasonable based on the specific workforce characteristics, and the phase of the COVID-19 pandemic. In fact, one recent case determined that a vaccine mandate was no longer reasonable because the scientific evidence presented in that case did not demonstrate that two doses of vaccines were effective in reducing transmission of the dominant Omicron variant and there was a negligible difference in the risk of transmission in respect of Omicron as between a two-dose vaccine regimen and remaining unvaccinated.

Different considerations for vaccine mandates apply in the non-unionized context, where there are limited reported decisions on this topic. Generally, employers in a non-unionized setting have a much greater ability to terminate the employment of employees by simply providing notice of termination or payment in lieu thereof. In that context, a non-unionized employer would likely be able to terminate an employee without cause (by providing notice of termination or pay in lieu thereof) for non-compliance with a vaccination policy, as long as there was no discrimination. It would be much more difficult for an employer to terminate an employee for cause (which does not require notice or pay in lieu thereof), but there has not yet been a reported decision in Canada on terminations for cause arising from a refusal to be vaccinated so it remains to be seen in what circumstances a court would uphold such a decision.

Since the introduction of large-scale vaccinations in Canada last year, the definition of who qualifies as “fully vaccinated” has changed. For the purposes of vaccine mandates, can individual companies or jurisdictions create their own standards for who has this status, or are they bound by federal or provincial law? Will these vaccine statuses continue to be contingent on what the scientific consensus is (e.g., two shots + a booster progressing to two shots + two boosters, and so on) or are booster shots considered optional (like, e.g., a flu shot)?

Individual companies or jurisdictions can create their own standards for what qualifies as “fully vaccinated” under their vaccination policies, but these decisions will be judged against what is reasonable, including the available science-based evidence for what is necessary in the circumstances.

When the federal or provincial governments take clear positions on what is considered “fully vaccinated”, in most cases it will be easier to establish the reasonableness of a policy tied to that standard. As a result, most vaccination policies required proof of at least two doses of the COVID-19 vaccine based on the early scientific evidence that suggested this was the minimum amount necessary to achieve immunity and which was consistent with government standards at the time.

However, as provincial and federal “vaccine mandates” soften or disappear entirely, and boosters are merely “encouraged”, companies will be left to determine whether their policies should be supplemented to include boosters. These decisions should be made with careful reference to the best available scientific evidence on the effectiveness of vaccines and boosters. As outlined above, at least one arbitrator concluded that a two-dose vaccination policy was no longer reasonable because it was not proven to be effective in achieving the objectives of the policy. Consistent with that decision, other arbitration decisions have upheld policies which require boosters, recognizing that the scientific evidence supports that boosters are necessary in curbing the spread of Omicron and that rapid testing is unreliable with respect to Omicron, such that rapid testing alternatives may not be reasonable alternatives.

How will current workplace behaviours change as a result of vaccine mandates? Do you believe that they will affirm current trends such as the rise of hybrid or remote working? Could they lead to a prolongation of the so-called “Great Resignation” and/or the current struggles to staff positions and source workers faced by many industries such as those in the supply chain?

Overall, Canada has a very high vaccination rate with recent data confirming that almost 83% of the population has received their “primary series” of two doses, and almost 50% has received their primary series and a booster. Because of these high levels of vaccination across the country, it is unlikely that existing vaccine mandates will have a major impact on workplace behaviours or that they will prolong the “Great Resignation” and staffing shortages because most employees have their basic COVID-19 vaccines already.

However, COVID-19 itself has drastically changed many workplaces in Canada, with remote or hybrid working arrangements becoming an expectation of employees in industries where it is acceptable to work from home. For employees who find themselves in these situations, vaccine mandates may – at some point – become unacceptable or undesirable because there isn’t the same “need” to be vaccinated if most employees are working from home on a regular basis. It is therefore important for companies to constantly gauge whether their policies need updating.

While most employees understood and accepted the need for a two-dose vaccination policy at the beginning of the pandemic for in-office settings, future policies which require regular boosters may be viewed as unnecessary (for, e.g., in remote work settings) and could contribute to higher turnover (with employees resigning or being terminated over a refusal to get boosted and/or demand permanent remote work arrangements to avoid the need to be vaccinated).

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Amy Sherrard is a lawyer at Lenczner Slaght. She has a broad civil litigation and appellate practice and specializes in complex corporate and commercial litigation, class actions, professional liability, and employment disputes. Amy has represented clients before all levels of court in Ontario as well as other provinces and the Supreme Court of Canada. She also has extensive experience representing clients in private commercial arbitrations.

Amy thanks Herschel W Chaiet, a summer student at Lenczner Slaght, for his assistance in surveying the reported decisions on COVID-19 vaccine mandates in Canada.

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