Can employers enforce a mandatory Covid-19 vaccination policy?

Last week, the B.C. government released the province’s Covid-19 Immunization Plan. The public vaccination schedule is divided into four phases, based on vulnerability and risk. We are currently in Phase 1 of the vaccination schedule. By the province’s timeline, mass vaccination in B.C. will be completed by the end of 2021. This is dependant on vaccine procurement and distribution. Many employers are eager to return to their regular business practices without the restriction of Covid-19 safety measures. This raises the question of whether an employer can require their employees to receive the Covid-19 vaccine.

So far, there is no legislation that makes Covid-19 vaccination mandatory for Canadian residents. Enforcing a mandatory vaccination policy in the workplace can engage employee human rights and privacy law issues. In the past, Canadian courts have upheld mandatory vaccination in workplace settings. However, the case law is undeveloped and primarily centres on healthcare workers. In 2013, a B.C. arbitrator allowed a provincial policy that required health care workers in the province to be vaccinated or to wear face masks during flu season. Although the policy affected an important privacy right, the masking component was not unreasonable given the degree of intrusiveness. It was held that the policy was not discriminatory and did not contravene privacy legislation or the Charter. The arbitrator called the policy "a valid exercise of the employer's management rights."

In B.C., employers have an obligation to ensure the health and safety of all workers in the office or on the jobsite under section 21 of the Workers Compensation Act. Finding a balance between the employer’s health and safety obligations and an employee’s rights will be context specific for each workplace. This is an evolving issue as the province’s Immunization Plan progresses. Absent clear government direction, employers should seek a legal opinion before implementing policies regarding the Covid-19 vaccine.