With most B.C. adults having received at least one dose of the COVID-19 vaccination, the province is finally opening back up. As things get close to returning to normal and employers consider how their workplaces will look this summer and beyond, many people are wondering about mandatory workplace vaccine policies.
Can B.C. employers require existing employees to get vaccinated?
In the vast majority of B.C. workplaces, there is no legal mechanism an employer could use to force their employees to get vaccinated. Thus, most workplace mandatory vaccination policies would be legally unenforceable—employees terminated for violating such policies would have wrongful termination claims against their employers. That situation is unlikely to change unless the government introduces new legislation.
But there are exceptions. Employers who think that their workplaces might qualify for a legally recognized reason, such as occupational health and safety that cannot be accommodated by lesser means, should get legal advice.
Can employers require new employees to be vaccinated?
In most cases, yes. Employers have considerable latitude in determining who to hire or not to hire, and outside of rare cases, there would be nothing illegal about refusing to hire un-vaccinated workers. Employers can generally require that new employees be vaccinated, as a condition of employment.
Can employers fire employees for refusing to get vaccinated?
Also yes, in most cases. An employee’s refusal to get vaccinated would usually not be a legally justified reason to fire them. However, in most cases, B.C. employers can dismiss employees without legal “just cause” by providing them with sufficient notice of termination (or severance pay in lieu) per the employment contract.
Employers who want to require their existing employees to get vaccinated could make vaccination a condition of continued employment, and terminate non-compliant employees by providing working notice or severance pay. Employers and terminated employees should consider getting legal advice about what constitutes sufficient notice of termination—it is often much longer than expected, in the order of months to years.
There are minefields to avoid here. In some circumstances, unilaterally changing an employee’s duties could constitute a constructive dismissal, which would give rise to a wrongful termination claim. Employers considering this course of action would be well served to get legal advice.
Beware the Human Rights Code
Before firing an employee or refusing to hire someone based on their vaccination status, employers are cautioned about human rights consideration. The B.C. Human Rights Code makes it illegal to discriminate against certain protected personal characteristics, such as disability, in the area of employment. Any employer that wants to consider whether an employee has been vaccinated is cautioned to find out why not, to avoid accidentally violating their human rights. Employers should consider getting legal advice about their obligations to accommodate employees’ protected personal characteristics, in order to avoid potential lawsuits.
This area is highly fact-specific, varying from straightforward (an employee is medically unable to get vaccinated) to muddled (an employee’s religion allows the vaccine, but their local church opposes it). It is also an area that readily overlaps with employees’ deeply held personal beliefs, which—while important to the employee—are not legally protected. In the coming months, employment lawyers expect to see a number of employees testing the bounds of these principles at the Human Rights Tribunal.
Can employers ask employees if they have been vaccinated?
Yes, and they can request proof of vaccination, although doing so constitutes the collection of personal information, which is subject to privacy laws. This must be done carefully.
The employment lawyers of North Shore Law are here to help
Whether you are an employer or an employee, timely advice given early can protect you, by putting a quick end to a dispute, or stopping one from happening in the first place.
If you have questions about vaccine policies in your workplace, contact the employment law team at North Shore Law or email their business and employment lawyer Nathan A. Rayan at [email protected] or call at 604-980-8571.
