No jab, no job? Experts weigh in on legality of vaccine mandates at private companies

Vancouver -

Once it was announced that vaccines will be mandatory for federal government employees, other levels of government and companies in the public and private sector followed suit.

Earlier this month, B.C. decided to make vaccination against COVID-19 mandatory for workers in long-term care homes and assisted living facilities.

Canada’s largest banks said last week that they will also require employees working in their offices to be fully vaccinated.

Porter Airlines and financial conglomerate Sun Life made similar moves as well. Numerous municipal governments, universities and public services such as the Toronto Transit Commission have announced vaccine mandates in recent days.

But do employers have the right to impose such mandates? What if the employee is unwilling or unable to get vaccinated?

Employment lawyer Jon Pinkus told CTV News that until the federal or provincial government passes a law, many employers will likely be dealing with a high volume of disputes from employees.

“Employers are not obligated by law to have their employees vaccinated,” said Pinkus, a partner at Samfiru Tumarkin LLP.

“I would have thought there would have been laws passed by now. We are seeing some signals from the federal government and some companies that it will be mandatory, but we haven’t seen a law requiring vaccinations,” he added.

Pinkus said refusing a vaccine is unlikely to be cause for termination. If it gets to that point, it will be a risky move for businesses.

“There is certainly going to be a wrongful dismissal liability if they don’t pay severance, and there is also going to be some human rights exposure for doing that,” said Pinkus.

“Mandatory vaccinations sound really simple. It sounds like no jab, no job. Unfortunately, it’s not really that simple. It’s something employers will have to consider very carefully before rolling it out,” said Sara Forte with Forte Law.

Most larger companies that have it made vaccinations mandatory like Canada’s big banks have only made it a requirement for those returning to the office.

Forte said B.C.’s Human Rights Code would protect anyone who is physically unable to get immunized due to medical reason or religious beliefs.

“Our Human Rights Code here in B.C., which is what regulates most employers and employees in B.C., protects people on disability and people’s religious beliefs so that is already in place,” Forte explained.

“If you were to fire someone who was unable to get vaccinated, you’re looking at a human rights issue and that employee could take the case to the Human Rights Tribunal,” said Forte.

Employees who are unable to get the vaccine should have a right to accommodation, added Pinkus.

“It’s going to be very difficult for an employer to say, well we can’t have you work from home, even though you’ve been doing this for the last 18 months,” said Pinkus.

Human resources expert Debby Carreau said those types of accommodations such as continuing to work from home or rapid testing should be discussed with your employer.

“Instead of assuming the worst and having a conflict with your employer, try to have a conversation,” said Carreau.

“Help them understand the barriers that you’re facing. It may not be you not wanting to get vaccinated, there may be some real implications for you."

As more companies implement vaccine mandates, HR and legal experts are advising businesses to closely watch for any changes and like all things in this pandemic, be prepared to pivot.