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MANDATORY VACCINATIONS IN THE WORKPLACE: EMPLOYEE FAQs

Guest
October 1, 2021

As with many issues relating to COVID-19, the question of mandatory vaccinations in the workplace is novel. Employment lawyers are being required to make judgment calls based on our understanding of the current legal framework, without the benefit of concrete decisions on these complex and difficult issues.

This post provides answers to some of the Frequently Asked Questions that we have received. It will be updated periodically, as information and requirements in this area change rapidly.

This FAQ provides general information only, not legal advice. There are other considerations for certain workplaces, such as unionized workplaces, federally-regulated employers, or workplaces where a public health order may be in effect.

If you have questions as an employee about vaccination requirements, you should seek legal advice specific to your circumstances.

Can my employer require me to be vaccinated as a condition of my employment?

In many workplaces, the answer to this question is currently ‘yes’.

More specifically, BC has a number of workplaces where, pursuant to the COVID-19 Vaccination Status Information and Preventive Measures Order – September 27, 2021, your employer is legally obligated to require employees to be vaccinated.

For example, all employees who work in health care facilities or long-term care homes are required to be fully vaccinated, unless they fall within certain specific medical exemptions. If you do not meet the criteria for a medical exemption, you will likely be put on an unpaid leave until the PHO is repealed. If you have a medical basis for not being vaccinated, then you should raise this with your employer as soon as possible.

In workplaces not subject to a Public Health Order requiring vaccination, your employer may still be able to impose a mandatory vaccine policy, pursuant to their obligation to ensure a safe and healthy workplace. This is particularly the case if you work in an environment where it is not possible to implement other safety measures (such as physical distancing or masks), or where you are frequently required to enter facilities that require proof of vaccination.

Your employer’s vaccination policy should take into consideration the Human Rights Code, privacy legislation, and if other options are available to accommodate workers who are unable to be vaccinated. If you have concerns about a vaccination policy in your workplace, you should discuss those concerns with your employer, or seek specific legal advice.

Do I have to disclose my vaccination status to my employer?

Your vaccination status is personal information that is protected under privacy legislation.

Your employer can ask you to disclose your vaccination status, and you have the option of refusing to do so. However, there may be work-related consequences for refusing to disclose your vaccination status, such as being required to work from home or having to take additional precautions (for example, regular COVID-19 tests).

If proof of vaccination is a job requirement, or has been ordered under a Public Health Order, then you may risk losing your job if you refuse to confirm vaccination status.

Under BC’s privacy legislation, your employer is able to collect personal information where it is necessary to effectively manage the workplace. Your employer must limit the use and disclosure of any such information as much as possible, and is required to keep that information secure and confidential.

I am starting a new job, and my offer letter includes a requirement that I be fully vaccinated before starting work. Is that legal?

Yes, an employer is permitted to make it a condition of employment that you are fully vaccinated.

If you do not wish to be vaccinated, then your option is to not accept the offer of employment.

If you are not vaccinated because you are unable to safely receive the COVID-19 vaccine due to a physical disability, then you should raise this with the prospective employer, as they may be required to accommodate you under the Human Rights Code.

My employer is requiring me to get vaccinated or I’ll lose my job, what are my options?

The answer to this depends on your workplace, and your reason for not being vaccinated.

If you are unable to get vaccinated because of a physical disability, or another protected ground, you may have the option of filing a human rights complaint if you are fired. In that case, you should inform your employer of the reason for being unvaccinated, provide supporting information, and discuss options for accommodation (for example, by working from home or agreeing to be regularly tested).

If you do lose your job because you are not vaccinated, then you may be entitled to termination pay, and should consult an employment lawyer to discuss your options.

What protections exist under the BC Human Rights Code?

The Human Rights Code only prohibits discrimination on certain grounds (called “protected grounds”).

In the context of employment, you are protected from being discriminated against on your race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

The most common exception that would apply in the context of a vaccine requirement is a medical disability that prevents you from being vaccinated. It is important to remember that you will need to provide a medical certificate confirming you are unable to be vaccinated for medical reasons.

If you are choosing not to get vaccinated because of your personal beliefs (including that you feel the vaccine is unsafe), that will not support a human rights complaint. We encourage employees to review the information available here on this topic from the Human Rights Tribunal, and to review our blog post on this issue.

If I do choose to get the COVID-19 vaccine because it is a job requirement, and get sick, what are my options?

In some cases, an adverse reaction to the COVID-19 vaccine may be considered a “workplace injury” by WorkSafe BC, and treated like any other workplace injury. This will only be the case where you are required to be vaccinated as a condition of employment, and each claim is still assessed on its own merits.  You can see more information on WorkSafe BC’s approach to COVID-19 claims here.

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These issues are very fact-dependent and there is no substitute for solid advice on your specific situation.  We want to help – call us now to discuss!

Note: Ascent Employment Law has a zero tolerance policy for any harassment towards our staff. We understand that these issues are emotional, challenging, and often time-sensitive, but expect that our staff will be treated respectfully at all times.