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November 1, 2022

Here is an update from Maria McDonald, McDonald HR Law, for employers on mandatory vaccines in the workplace. 

1. Employers do not have to legally justify vaccination requirements for new hires. It is the employer’s prerogative to require vaccination against COVID as a condition of hire. An employer can refuse to hire based on vaccination status without any legal ramification, subject to the limited medical and religious exemptions under the Ontario Human Rights Code. However, the employer will have to consider non-legal factors such as:

• Recruitment and staffing pressures. 
• What current staff will think and feel if the new hires don’t have to be vaccinated (especially if current employees were subject to a mandatory vaccination policy in 2021)

2. The legal and operational issue for employers is will they force employees to get booster doses for the fall/winter of 202/2023. There is no need to forecast beyond that, as we have no idea where we will be in spring of 2023.

3. There are reasons/arguments for and against mandatory booster doses:

a) COVID-19 continues to be a significant concern (the following are Ontario numbers as of October 15, 2022)

• The number of reported cases are approximately 10,000 per week (and we know this is under reported)
• There are still 450 to 500 hospitalizations per week
• The number of weekly deaths are at approximately 70 

b) Vaccinations reduce hospitalizations and deaths

• The rates of hospitalizations and deaths are highest among those who are not vaccinated.
• Booster doses have proven to be effective in reducing hospitalization and deaths among those who have been vaccinated.
• However, this has to be kept in perspective:
  • The majority of hospitalizations are people 60+ years old
    • age 60 to 79 = 160
    • age 80+ = 230
    • Total 190 out of 464 hospitalizations
• The majority of deaths are also 60+ years old 
  • age 60 to 79  = 22 deaths
  • age 80+ =  47 deaths
  • total 69 out of 72 deaths
• The people most impacted are likely 70+. As such, employees under 70 (the majority of employees) are not the most impacted by COVID. 

c) The evidence that vaccination curbs or reduces transmission is not clear and has not been established. As such, employers cannot justify mandatory booster doses based on reduced transmission 

d) Employers require mandatory booster doses based on:

•  the science that booster doses will help keep their staff safe and reduce likelihood of hospitalizations and deaths.
•  The MOH recommendation that All Ontarians aged 12 and over are encouraged to stay up to date with their vaccinations and get a bivalent booster dose at a recommended interval of six months after their last dose, as evidence shows that vaccine protection decreases over time.  https://www.ontario.ca/page/covid-19-vaccines. 

4. State of the law in Ontario

• There is support for mandatory booster doses in a recent arbitration decision out of British Columbia. The union argued the mandatory vaccination policy (which did not require boosters) should not be enforced any further because:
  •    The science does not support that vaccines reduce transmission
  •    There are anti-viral drugs to reduce the impact of COVID
  •    PPE measures etc. are a less intrusive way to keep people safe

• The arbitrator accepted the evidence that vaccines do not reduce transmission. But it nonetheless upheld the mandatory vaccination policy on the basis that:
  •    Vaccines keep employees safe from COVID 
  •    The policy was following the recommendation of public health

• We don’t know if this decision will be followed in Ontario.
• In the case described above, the employer had never terminated an employee. They instead put employees on an unpaid leave of absence.

5. Considerations for employers 

• There are certainly rational justifications for employers to implement mandatory boosters.
• The justifications will be personal employee safety and an available workforce.
• The policy cannot be justified on reduced transmission (at least right now, subject to new evidence).
• The mood and morale of their current workforce – do they need such a policy to keep people? Will it cause current employees to leave? 
• Their staffing and recruitment issues. Are they desperate for new hires and will a mandatory booster policy help or hinder this?

Just as with the original vaccination policies, we do not know if a court will allow an employer to terminate with cause (and no payment of termination payments) for failure to get a booster because there is no case law on this. Even if there was, each case would have to be determined on its own facts, so even if an employer does implement a mandatory policy, termination for cause is still going to be a legal risk.