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COVID-19 vaccination is a polarizing subject. There are a lot of people who completely support it, some have concerns, and others are adamantly against getting the vaccine.
This situation puts many employers in a difficult situation. You want to keep a safe workplace for your employees, customers, and everyone you interact with on a daily basis. So, should you make vaccines mandatory in your workplace? What happens if an employee refuses? There is a lot of confusion about what you can and cannot do. To date, the federal and provincial governments have not mandated the COVID-19 vaccine.
Yes and no. Employers can make vaccines a requirement as part of their company policy. However, if an employee chooses to challenge this requirement in court, it could be found invalid.
“Because the federal and provincial governments have so far refrained from making the COVID-19 vaccine mandatory, it’s ‘unlikely’ that workplace policies that do so will stand if tested in court or through arbitration,” says Hermie Abraham, an employment lawyer and the owner of Advocation Professional Corporation on Global News. Mandatory vaccines could be considered a human rights violation.
Taking a hard stance and requiring your employees to get the vaccine can create an issue with some of your workers. There are those who refuse or cannot get a shot. For example, those with medical issues, or those who refuse based on moral or religious grounds. You would have to accommodate these people.
“In Canada, if an employee’s choice not to be vaccinated prevented the person from being able to perform core duties of the job, an employer would have to perform a two-step analysis,” Abraham says.
If the employee’s choice not to get vaccinated is based on religious grounds, the employer would have to try to accommodate the employee. For example, allowing them to telecommute or modifying some job duties.
But, if there is no sound solution and the employee has no health or religious ground to refuse vaccination, the employer could lay off the employee.
“There would be what we call ‘a frustration of contract’,” Abraham says. “In such a scenario, employers would likely be able to end the employment contract with limited liability,” she adds.
The question of requiring employees to get vaccinated and the question of vaccines as part of health and safety measures will continue to be a hot-button topic as more and more employees return to the workplace.
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