Can Employers Require Proof of COVID-19 Vaccination?team
With the COVID-19 pandemic restrictions winding down in Ontario, many businesses will have the opportunity to begin re-opening to the public. Additionally, COVID-19 vaccinations remain ongoing and easily accessible by the public. As employers have a duty to maintain a safe workplace environment, they may be wondering whether they can require proof of the COVID-19 vaccination when hiring new employees.
What the Law Currently Says – Proof of COVID-19 Vaccination
Currently, the law regarding mandatory vaccination for COVID-19 at Ontario workplaces remains unclear and unsettled. There have not been any legal decisions made regarding COVID-19 vaccination and the workplace and neither the government of Ontario nor public health agencies have implemented any such requirements.
Employers who want to implement a policy requiring proof of COVID-19 vaccination as a condition for employment hiring may be taking a shot in the dark so to speak. They may find themselves on the wrong end of a lawsuit without a clear guideline on how the Judge or Adjudicator may rule on the issue. In a unionized workplace, negotiations with the union may be required as well.
Employers may be able to strengthen their position if the policy regarding mandatory COVID-19 vaccination in hiring is instead part of a wider workplace initiative to prevent the spread of COVID-19. If the employer can demonstrate they are committed to preventing the spread of COVID-19 at the workplace, a policy requiring proof of vaccination to be hired could potentially be seen as less arbitrary than otherwise.
Arbitrators have previously determined that a mandatory vaccination policy should be rationally connected to the workplace, although it is unclear whether this would apply to the COVID-19 vaccine or not. As such, new employees or job applicants being required to produce proof of COVID-19 vaccination may not hold up if the workplace is a safe office environment as opposed to a public health institution.
Potential Risks to the Employer
The risks involved with implementing a requirement for proof of COVID-19 vaccination in hiring are similar to those that could apply to a regular workplace policy for employees on this issue. A blanket implementation of this policy could open the employer up to liability for a Human Rights application before the Human Rights Tribunal of Ontario. Some prospective employees may not be able to receive the COVID-19 vaccine due to pre-existing medical conditions or due to religious beliefs. Failing to accommodate these prospective employees could be seen as discrimination by the Tribunal.
Furthermore, if an employer were to offer employment to a prospective employee but then terminate their employment before they start work due to a failure to provide proof of vaccination, the employer could be liable for significant damages for wrongful dismissal. If the employee has not yet had their first day of work before the dismissal, they may be entitled to pay in lieu of common law reasonable notice.
If an employer is considering the use of a policy requiring proof of COVID-19 vaccination as a condition for hiring, they should consult an employment lawyer to ensure the safest possible implementation.
If you are an employer considering the implementation of a mandatory COVID-19 vaccination policy for the hiring process or if you are an employee or job applicant with concerns about the implementation of this type of policy, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.
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