OHS Canada Magazine

Mandatory vaccination policies the way of the future

Inoculation is best protection we currently have against COVID-19


Many are asking, are workplace vaccine mandates legal? The answer is — yes. And, not only is it permitted, arguably it’s required, writes lawyer David Reiter. (SolStock/Getty Images)

At the start of fall 2020, we were coming out of the first summer of the pandemic with the muted hope that we would soon be able to return to some sense of normalcy.

However, our optimism was quickly dashed when the second wave began. What followed was a very difficult winter and spring, characterized by lockdowns and the hectic, somewhat confused, and extremely limited introduction of vaccines.

Fast forward one year later, and we’re once again filled with a hesitant sense of hope. To be fair, though, a lot has changed. Vaccines are now readily available, and almost 70 per cent of Canadians have been fully vaccinated. Maybe, just maybe, things can start getting back to normal.

In trying to make that happen, many employers have begun implementing mandatory vaccination policies that will require their workers to return to the workplace, fully vaccinated.

The underlying rationale is straightforward. Vaccinated employees are less likely to become infected and to transmit COVID-19. It simply is a reasonable precaution to take for the protection of the workplace.

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Many are asking, is it legal? The answer is — yes. And, not only is it permitted, arguably it’s required.

Legality of mandatory vaccination policies

Employers must take every precaution reasonable to protect their workers.

That is set out in the Occupational Health and Safety Act, R.S.O. 1990, c.O.1. Given that, and recognizing that workplaces throughout the pandemic have been flashpoints for transmission, surely employers are reasonably required to take those steps that are available to them to limit transmission, including requiring workers to be vaccinated.

As well, the regulations under the Reopening Ontario (A Flexible Response to Covid-19) Act, 2020, S.O. 2020, c.17, require businesses to operate in compliance with recommendations, instructions and/or advice that are given by public health officials.

To that point, thus far, the chief medical officer of health for Ontario has directed that hospitals and some related services implement vaccination policies, and, Toronto’s chief medical officer of health has issued a strong recommendation that all local businesses do the same.

More such recommendations and directions are sure to follow, and as they do, more businesses will become legally obligated to implement vaccination policies.

Challenges of implementing a vaccination policy

If vaccination policies are to be effective, they should provide that workers cannot attend work in person unless they provide proof of vaccination. Policies should also provide that those who do not vaccinate must attend an educational seminar that speaks to the dangers of being unvaccinated in the workplace.

However, as with all policies, there are going to be challenges with implementation.

For example, some workers may refuse vaccinations on principle. In that situation, employers will either have to accommodate those employees by allowing them to work remotely, or if that is not agreeable or possible, they may need to be terminated.

Caselaw has not yet developed on this point, and it may well be that terminations will have to be without case, with notice.

Workplace vaccine mandates require delicate balance

Other cases may prove still more challenging. For example, some workers may not medically be able to be vaccinated, which will trigger human rights obligations. In those cases, accommodation may have to be provided.

However, what will constitute a medical exemption? Ontario’s rules for its vaccine certificate program are that only those with an allergy to an ingredient in the vaccine — verified by an allergist — or those who suffered from myocarditis or pericarditis after their first dose should be exempt.

While this program may provide guidance, what may justify exemption under mandatory workplace vaccination policies has yet to be determined. All we know for certain is that with proper documentation, appropriate accommodations should be made.

Similar concerns may also arise with respect to employees who refuse vaccination on religious grounds.

Considering privacy concerns

Another concern related to the implementation of vaccine policies concerns the privacy of workers’ vaccination information.

Recognizing that, any mandatory vaccination policy should also spell out how information will be stored, for how long, who will have access to it, and how it will be destroyed.

As well, it should also set out how third-party information requirements will be dealt with.

For example, if third parties (i.e. suppliers) are attending at the workplace — how will their information be collected and dealt with?

Similarly, if a worker’s duties include attending at third-party sites, worker vaccine information may have to be shared in order to meet the third-party’s policy requirements.

In planning for such cases, the detail of how information will be shared and protected should also be addressed in the policy.

The way of the future

Putting aside the challenges of developing and implementing a mandatory vaccination policy — all indications are that they are the way of the future.

After all, vaccination offers the best protection we currently have against COVID-19 in the workplace, and the implementation of vaccine policies is legal and necessary.

David Reiter is a partner with Aird and Berlis in Toronto, and a regular columnist for OHS Canada.

This Legal View column appears in the September/October 2021 issue of OHS Canada.


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9 Comments » for Mandatory vaccination policies the way of the future
  1. Kevin McDonald says:

    These death jabs have killed 100’s of thousands, and you are promoting this a protecting people???
    How sick and evil.
    This is clearly the Mark of the Beast that Jesus warned the world of. Revelation 13:16And he causeth all, both small and great, rich and poor, free and bond, to receive a mark in their right hand, or in their foreheads: 17and that no man might buy or sell, save he that had the mark, or the name of the beast, or the number of his name. 18Here is wisdom. Let him that hath understanding count the number of the beast: for it is the number of a man; and his number is Six hundred threescore and six.

  2. Alana says:

    The problem is that even fully vaccinated people can get and spread covid … so we still face the problem of these nonsensical lockdowns. What’s the point of being vaccinated if you STILL can’t work to provide for your family? Kids can’t get an education …. This whole thing is ridiculous and has been mishandled right from the second Wuhan was allowed(or were they) to talk about it.

  3. anonymous says:

    You can still get and spread Covid if vaccinated, you just don’t get as sick or require health care which seems to be the big issue. Let the people have their choice of vaccination or not but tell the unvaccinated they relinquish their right to health care if they get sick from Covid.

    • Patrick says:

      “You can still get and spread Covid if vaccinated, you just don’t get as sick or require health care which seems to be the big issue.” Right, so if we received the shot, are we not protected from a bad outcome? Why do we care if others choose not to get it?

      “…but tell the unvaccinated they relinquish their right to health care if they get sick from Covid.” Why? Isn’t health care for sick people? Will you also deny care to drug addicts, obese people, alcoholics, smokers, etc. etc.?

  4. Patrick says:

    Not sure this sweeping perspective holds water. A few points: what evidence is there to show COVID is a threat to workplace H&S? Setting aside critical care and hospice settings (i.e., high-risk settings), what link is there to hospitalization and severe outcomes in everyday workplaces (i.e. the site-specific hazard?) What evidence is there that shots effectively limit the spread of the disease at all? What evidence is there that folks with shots are more/less likely to spread the disease in the workplace? Unless “reasonable action” is unpacked using actual data/scientific inquiry, hard to see the proposed approach as anything but unreasonable, political pandering and government overreach.

  5. Brian mehrer says:

    Actually per science facts. Vaccinated people are not any less likely to get covid as vaccinations do not stop a virus but instead make symptoms less harsh. Consequently we now have vaccinated people carrying the virus and transmitting the virus because they think they cant catch yhe virus..dont feel sick..and yet are transmitting. Look at real stats of vaccines..they do not prevent vius infection or erradication of a virus.

  6. Chosen One says:

    (Edited to remove slanderous comment)

    Mandatory vaccination is definitely NOT legal in Ontario or any other province under Canada Charter of Rights and Freedoms, Nuremberg Code and many other signed civil protection policies.
    Even asking results of a genetic test (PCR) is illegal (Bill S-201).
    Who is giving OHS the authority to mandate medical procedures? Certainly not FREE CANADIANS.
    Severance packages and lawsuits will be the theme around this subject until more people start thinking about this logically, which is the minority at the moment.

  7. Giovanni says:

    How does section 63(2) apply in this circumstance where the OHSA clearly indicates the following:
    Employer access to health records
    (2) No employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with another statute, to a health record concerning a worker without the worker’s written consent. R.S.O. 1990, c. O.1, s. 63 (2).

    • LouS says:

      Because COVID-19 constitutes a workplace hazard under the Canada Labour Code your employer can lawfully request that you provide information regarding COVID-19, to the extent that it directly relates to ensuring the health and safety of employees in the workplace. This likely also applies to employers governed by ESA too.

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