Today, Zubas Flett Law Lawyer, Ted Flett, spoke with Aarti Pole of CBC News about mandatory workplace vaccination policies and their impact on employers and employees.
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Read the full transcript below
Aarti Pole: Private companies are making plans for vaccine mandates for their employers, now these require them to be vaccinated against COVID 19 before returning to the office or shop floor. So for more on this, we are joined by Ted Flett. He is an Employment and human rights lawyer at Zubas Flett Law and we’ve reached him in Toronto. Hello Ted, thank you for joining us.
Ted Flett: My pleasure, good afternoon.
AP: Alright, let’s jump right in. Do employers, this is a big question for so many people now that they’re seeing all of this news, do employers actually have the right to implement vaccine mandates on their employees?
TF: They do have the right. Employers do have this right, now, to mandate vaccinations for their employees but those rights come with limitations and some of those limitations, for example, include accommodation for employees that may make a claim on religious grounds or certain medical conditions or disability and of course there are also requirements in terms of privacy and making certain, for example, if an employer is mandating or requiring proof of vaccination, that once they have that information and evidence of the vaccination they have to treat it as incredibly private confidential health information.
AP: On that, there have been a lot of questions about this sort of debate between privacy versus safety and the obligations of the employers, and employees really, on this this front. So where do the legal challenges potentially stand in that debate?
TF: Well Aarti, I think you just said it, it’s that crux between, and essentially the balancing act between, public safety and protection of rights and protection of privacy. By and large, it would seem, and appear by all indications, from all levels of government, that public safety is going to rule the day but there are still privacy concerns that individuals, both employers and employees, need to be aware of and also exceptions not only around, for example, human rights breaches or potential human rights breaches under the Canadian Human Rights Act or the Ontario Human Rights Code, or whatever provincial statute governs human rights, but also those individuals who might be stuck in the middle. They’ve had their first dose but not their second dose. They showed intentions to become vaccinated but they aren’t vaccinated yet and where will they fall within the employer’s policies. There’s quite a few questions that employers are going to need to be quite vigilant over and try to answer.
AP: Are you seeing a lot of people come to you with these sorts of questions right now or in some of the cases employees for the companies that have already introduced these mandates?
TF: We certainly are and I think in particular now, it’s really game on these days Aarti because the federal government has come through, the City of Toronto has come through, indicating that there will be mandatory COVID policies, COVID vaccination policies, at their places of employment and they’re also encouraging the private sector to implement COVID 19 vaccination policies so we’re seeing a huge uptake, lots of questions, searching for answers in terms of what’s appropriate, what’s reasonable, how far and strict can an employer go insofar as implementing these policies and enforcing them.
AP: Alright, to that point to how strict an employer can be, given your experience with this scenario now, maybe can you walk us through what this situation could look like if employees refuse. Could they actually be fired for not being vaccinated?
TF: Well, based on these policies, in the case of really strict policies that are introduced, quite potentially Aarti. Employees could be terminated, however there are protections of course for individuals that if the termination of an employee’s employment on the basis of the COVID 19 vaccination refusal, then, if there have also been breaches of protective grounds under the Human Rights Act on the basis of disability or on the basis of religious belief or creed, than those will be considered and an employer will not only owe reasonable notice under employment statutes and common law, but also additional damages for breaches under those codes.
AP: What about public versus private employees. We know there is a difference there, so how much leeway exist for those separate realms of employment?
TF: There will be different measures, and I suppose safeguards, provided to public employees for example versus private employees. Public employees for example, would also have potentially at their fingertips, and at the ready, charter claims, breach of charter claims under the Canadian Charter and potentially, constitutional arguments against their employer because, of course, their employer is a government actor but apart from that, the statutes, the laws that are available to employees for a “safe work place” but also a workplace that doesn’t breach their human rights is available to them.
AP: You know it was interesting because we were listening to the U.S president, Joe Biden, speak earlier about what the FDA approval of the Pfizer vaccine and in that address, he said that he’s urging other private companies to require vaccines, so he was encouraging that, promoting it, sure that’s the U.S and not Canada, but could we see that here and if we do, is it a bit of slippery slope?
TF: We have seen it, and it appears that we are going to continue to see it, particularly, for example, in the education sector and health care sector. I think it’s likely that we will see more of this. I think those will be political decisions and then to what extent, for example, those levels of government will provide some source of resources, precedents, helpful guidelines for employers in terms of enforcing those policies and also developing them. We’ll wait and see if that’s also part of those announcements.
AP: Thank you Ted for all of that information. I know a lot of Canadians have these questions right now. That was Ted Flett, he is an employment and human rights lawyer in Toronto. Thank you Ted.
TF: Thank you.