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July 23, 2021

Mandatory vaccinations in the Manitoba workplace

With vaccination programs for COVID-19 being rolled out across Canada, many employers are interested to know if they can legally implement policies requiring employees to be vaccinated against COVID-19.

Background

In Manitoba, unlike in some other Canadian jurisdictions, there are currently no vaccines or immunizations which are mandated by law. Under The Public Health Act, a medical officer may order that a person who is infected with or who has been exposed to a communicable disease be immunized against that disease. However, no person is required to comply with such an order if that person objects to the immunization.

Ontario is one jurisdiction where certain vaccinations are mandatory for school-aged children. Under the Ontario Immunization of School Pupils Act, school-aged children are required to be vaccinated against certain illnesses. Even if the child is exempt from this requirement by virtue of religious or medical grounds, a medical officer of health may make an order excluding the child from school if there is an outbreak or immediate risk of an outbreak of a designated disease.

The Manitoba government has come out and said that the COVID-19 vaccine will not be mandatory for Manitobans. However, whether or not employers can make the vaccine mandatory for their physical workplaces is a different question.

Workplace Policies

The first step in determining the enforceability of any workplace policy is to determine if the policy is reasonable in the circumstances. In the union context, any policy implemented by the employer without the consent of the union must meet the following requirements:

  1. It must not be inconsistent with the collective agreement;
  2. It must not be unreasonable;
  3. It must be clear and unequivocal;
  4. It must be brought to the attention of the affected employee(s) before the company can act on it;
  5. The affected employee(s) must have been notified that a breach of the rule could result in discipline or discharge; and
  6. It should have been consistently enforced by the company from the time it was introduced.

Reasonableness is the key factor that must be established by the employer in order to enforce a workplace rule, and what is “reasonable” will be completely dependent on the workplace in question, the industry in which the workplace operates, and whether or not there are any other ways for the employer to achieve the same goal in a less invasive manner.

Labour arbitrators across Canada have dealt with the issue of mandatory vaccinations as it relates to influenza vaccines, and have generally found that workplaces cannot mandate that employees receive these. However, COVID-19 is both more infectious and more deadly than influenza, and as a result, challenges with respect to COVID-19 vaccination requirements may fare differently.

Mandatory vaccination policies in workplaces where the employees are dealing with vulnerable people, or with the public may be determined to be reasonable. However, in other industries, it may be that requiring use of (and supplying) personal protective equipment (“PPE”) such as masks, partitions and hand sanitizer may be a more reasonable and less invasive means of preventing the spread of COVID-19, rendering mandatory vaccination policies unreasonable in the circumstances.

If a mandatory vaccination policy is not justified, then a refusal to comply with the policy by an employee will not amount to just cause for discipline, including termination.  If the employer sought to terminate the employee (assuming the refusal is not due to a human rights protected characteristic as discussed below), then the employee will be entitled to pay in lieu as warranted in the circumstances.

Workplace Health and Safety vs. Human Rights Legislation

Even if a mandatory vaccination policy is found to be reasonable, it is important that an employer ensure that the policy is evaluated on a case-by-case basis to prevent challenges of the policy. It may be necessary for the workplace to provide exemptions to employees in certain circumstances, including religious or medical grounds. However, employers must be aware of the potential conflict this can create with respect Workplace Health and Safety Legislation as well as Human Rights Legislation.

On one hand, The Workplace Safety and Health Act requires that employers ensure, as far as reasonably possible, the safety and health of all of their workers. However, on the other hand, Manitoba human rights legislation does not allow discrimination based on medical or religious reasons. Even in jurisdictions where certain vaccinations are mandatory, there are generally exceptions when an individual objects on religious grounds or because of a medical reason.

As a result, as a general rule, it is unlikely that employers will be able to make hiring or firing decisions based on the vaccination status of their employees without potentially risking human rights complaints. However, it is possible that employers could require that employees work from home if not vaccinated, or other possible accommodations, especially if there is a current outbreak of the virus.

Further, depending on the circumstances and the type of industry/workplace in which the employee works, it may be possible that vaccination against the virus could be found to be a “bona fide occupational requirement,” if the employer can establish that it would be impossible to accommodate the employee without undue hardship. If this were the case, despite the fact that an individual may be able to argue that making a vaccine mandatory would be discriminatory, the policy would still be upheld.

This document has been prepared for informational purposes only. Making a final determination on the enforceability of such a policy will be dependent on the facts of each scenario. Please contact Fillmore Riley LLP regarding your unique circumstances.

We are available.

Fillmore Riley’s employment law practice continues to be available to assist Manitoba employers with their response to the COVID-19 pandemic. Our key contacts are:

David Simpson davidsimpson@fillmoreriley.com

Curran McNicol cmcnicol@fillmoreriley.com

Mark Newman marknewman@fillmoreriley.com

Celia Fergusson cfergusson@fillmoreriley.com

Jenna Seavers jseavers@fillmoreriley.com

Kelsey Yakimoski  kyakimoski@fillmoreriley.com

Resource posted July 23, 2021, with reports from Amelia Peterson. 

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