Canada chems flag labour law risks over coronavirus vaccination
Stefan Baumgarten
09-Apr-2021
TORONTO (ICIS)–The chemical sector and other employers in Canada cannot just mandate workers to get vaccinated against the coronavirus, a legal expert said in a recent webinar hosted by trade group Chemistry Industry Association of Canada (CIAC).
As Canada struggles with the pandemic’s third wave and its dangerous virus variants, there have been calls for mandatory vaccination to ensure workplace health and safety, especially in essential industries such as chemicals.
Existing Canadian labour and employment law says little to “just about nothing” how employers should proceed, Jim Anstey, employment lawyer at Ottawa-based Nelligan Law, told participants at the webinar CIAC organised to help its member firms.
“Surprisingly, a lot of my clients thought they could mandate vaccination in the workplace”, believing that provincial health and safety legislation and duties of care under tort law required them to act, he said.
However, as the law currently stands, “it’s really a complex issue, and it’s messy, there is nothing black and white here,” Anstey said.
In implementing a vaccination policy, employers needed to carefully weigh workplace safety concerns against workers’ contractual and privacy rights, as well as human rights, he said.
Importantly, employers will need to try to make accommodation for those employees who will or cannot be vaccinated for health, religious or other reasons, he said.
HOW COURTS MAY RULE
For guidance as to how courts may decide on
what an employer may or may not do, Anstey
pointed to past labour arbitration and court
decisions in areas somewhat related to the
coronavirus issue.
For example, several years ago, a labour arbitrator found that an employer at a healthcare facility could implement “a vaccinate or mask policy” to contain a flu outbreak, meaning that workers who refused or could not be vaccinated could be required to wear a mask.
That ruling could provide “some support” for employers in the coronavirus crisis, Anstey said, but he stressed that the decision concerned the healthcare sector.
Also, in a more recent decision concerning the coronavirus, an arbitrator supported an employer who ordered mandatory testing. Testing is an “invasive” procedure, although much less so than vaccination, the lawyer said.
On the other hand, there are court rulings that have curtailed employers’ actions, setting a high bar for allowing random alcohol or drug testing of workers, even in essential industrial plants or nuclear facilities, he said.
Those rulings may indicate that courts could be similarly restrictive if employees or labour unions are challenging mandatory vaccination policies, he said.
Furthermore, Canada now has more than one year of experience in dealing with the virus, and courts would be looking at alternatives to mandatory vaccination – in particular working from home, or practices such as mask wearing and handwashing at the workplace, the lawyer said.
“Following the advice from public health seems to be really doing the job” so far, Anstey said.
“I would say the prevailing view [among labour lawyers] is that mandatory vaccination in the workplace will not be permitted” by courts, with possible exceptions for workers in the healthcare sector, he said.
Nevertheless, chemical industry and other employers should have a vaccination policy or statement in place that incorporates public health guidelines, spells out the employer’s expectations, and encourages workers to be vaccinated, he said.
Another Canadian law firm, Osler, said in a recent advisory to clients that absent government directives on employees getting vaccinated, even a carefully drafted mandatory vaccination policy that addresses both human rights and privacy concerns for employees outside the healthcare context could be subject to a legal challenge.
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Thumbnail photo: Quebec’s health minister Christian Dube getting his first AstraZeneca jab in Montreal in March; source: public broadcaster CBC/RDI, Emilie Nadeau
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