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March 9, 2021

Mandatory vaccinations in the Manitoba workplace

In the coming weeks and months, a growing number of Manitobans working in non-frontline capacities will become eligible for COVID-19 vaccination. Throughout the pandemic, employers have faced the difficult challenge of balancing the requirements of their business with the need to ensure a safe workplace. Employers might expect, or seek to demand, that their employees be vaccinated before returning to work at the premises.

Can employers require their employees be vaccinated?

The brief answer is “probably not.” The Human Rights Code of Manitoba does not permit employment discrimination on medical grounds, which would very likely include an employee’s vaccination status. Objectors to vaccination on religious grounds might also find protection in The Human Rights Code from being obliged to be vaccinated.

The Workplace Safety and Health Act, however, requires that employers ensure, as far as is reasonably possible, the health and safety of all their workers. Employers must balance these two interests.

Can employers require vaccination before employees return to the employer’s premises?

Possibly. Requiring vaccination for a return to the physical premises, while allowing unvaccinated employees to continue working from home, might be a defensible approach to balancing the competing concerns of workplace safety and non-discrimination on medical grounds.

If the employer adopts this policy, they must ensure that employees working from home are not disadvantaged in their employment by staying at home. Being a home worker on account of one’s medical status cannot itself have a discriminatory effect. The responsibilities, prospects for advancement, and treatment by the organization of those working at home must be equitable (though not necessarily identical) to those working at the premises.

The status of the pandemic and the size of the workplace are also relevant factors. If community transmission continues or increases, and the employer has a large number of employees on its premises, the risk of the workplace becoming a place of transmission is elevated. Workplaces in which employees have extensive contact with the general public or vulnerable persons have a higher risk profile than workplaces with fewer such interactions. The extent to which employees can (and do) engage in social distancing at the premises is also relevant. The greater the risk in the workplace, the greater the leeway given to employers to make objectively informed, good-faith decisions to prioritize health concerns, such as requiring vaccination for attendance at the premises, over the individual rights of employees.

If the employer can establish that accommodation of an unvaccinated employee is impossible, as the employee’s work cannot be done remotely and the nature of the work is pandemic-sensitive, vaccination could potentially be considered a ‘bona fide occupational requirement’, enabling a mandatory policy. Such circumstances will be exceptional.

If an employer does require vaccination for a return of its workers to the premises, the employer must guard against the suggestion that vaccination is being used as a substitute for good pandemic hygiene – social distancing, mask use, sanitization, physical dividers, tracking entry, controlling people flow, and all the other measures with which we have become familiar over the past year. The vaccine should not be treated as an alternative to those tools. A vaccinated workforce does not alleviate an employer of their other pandemic-related obligations and workplace controls.

What other factors are to be considered?

Employers must be mindful that the vaccine distribution system, while differing between provincial jurisdictions, generally prioritizes (among other factors) individuals with pre-existing health conditions or other sources of elevated risk. Depending on when the employer verifies its employees’ vaccination status, the very fact of the employee being vaccinated could reveal that they qualify for an “early” vaccination for reasons previously undisclosed to the employer.

Further, if an employee is vaccine-hesitant for personal or religious reasons, regardless of the objective merits of such opinions, employers will become apprised of their employees’ personal views should they seek to know if employees are vaccinated. Dealing with this information requires discretion, sensitivity, and the usual privacy measures. Verifying an employee’s vaccination status necessitates an invasive conversation about the employee’s health that employers, and their HR personnel or local managers, might not be used to having. The employer should prepare for this.

Conversely, other employees might demand to know if the physical workplace poses a health risk to them on account of the presence of unvaccinated co-workers. To assuage their concerns, employers will need clear communication and unambiguous policies. Employees will have greater confidence in the safety of the workplace if they understand the rationale of the employer’s approach.

Finally, the employer must consider if a vaccination policy for employees returning to the physical workplace creates an indirect discriminatory effect in other ways: if the employees whose work is much more easily (or must be) done at the premises are disproportionately BIPOC, new Canadians, caregivers, or members of disadvantaged economic groups, a vaccination requirement for those employees is an additional imposition that might not be imposed on knowledge workers and management staff for whom working from home is seamless, or even preferable. The disproportionate effect of a vaccination requirement could give those employees the luxury of vaccine hesitancy not afforded to others.

This resource has been prepared for informational purposes only. Any final determination on the enforceability of a workplace vaccination policy will be dependent on the facts of each particular case. Please contact Fillmore Riley's Employment & Labour practice for more information.