This is an area that we believe will definitely be litigated. In this article we try to point out some issues, although in the absence of existing employer policies in this regard, it is a difficult issue to analyze.
The law is unclear and there are no clearcut precedents, outside of the union context. This is our view of the major issues in a non-union setting in Alberta. In the union context, many arbitrators have held mandatory vaccines to be consistent with collective agreements, although these policies tend to be in health related contexts.
Contractual
On a strictly contractual basis, employers cannot force employees to take Covid vaccines if they have not built that into an existing contract. Going forward they may be able to build it in for new employees, but cannot discriminate against potential employees under applicable human rights legislation.
Analagous to Drug Testing?
The analysis the courts take on mandatory vaccines may be similar to that of mandatory drug testing.
The Court in Phillips v. Westcan 2020 ABQB 764 considered the issue of random drug tests and said at 46:
[46] Random testing may be justified if “it represents a proportionate response in light of both legitimate safety concerns and privacy interests”
The Court then went on at 47:
Even if there were no such provision in Mr. Phillips’ employment contract, Westcan could impose random testing because of the dangerous, remote and unsupervised nature of Mr. Phillips’ work, and the significant incidence of drug and alcohol use in Westcan’s workforce.
It is our view that the courts in Alberta seem like they will look at whether mandatory vaccines are proportional in light of legitimate safety concerns and privacy interests. They will also need to take into account the nature of the individual job and the issues related to Covid in that job.
The jobs most likely to require mandatory vaccinations appear to be airline workers or tour operators who may require vaccinations to enter other countries. Mandatory vaccinations in that setting would seem more warranted than other jobs such as heavy equipment operators with limited interactions with other workers. The outcomes will likely vary by industry.
Charter Rights in Government settings
The Governments of Alberta and Canada have said they will not create mandatory vaccination rules. It is possible that certain parts of government (boards or agencies) will require mandatory vaccinations for their staff. Those staff may be able to use Charter arguments to fight theses policies.
Civil Liberties Issues
Taking a vaccine is a deeply personal choice and many people have strong feelings about this concept. Forcing people to take vaccines against their will almost certainly will lead to litigation.
Human Rights Violation?
The Alberta Human Rights Act prohibits discrimination on the basis of physical condition. Is it discrimination to not hire someone on the basis that they have not been immunized? This remains to be seen.
Liability if the Vaccine has Adverse Effects?
Given that the current vaccines being rolled out have been developed and studied over a period of months, not years, it is possible that there is a health risk not currently known. If an employer demands an employee to take a vaccine who then has an adverse reaction, is there going to be liability? Possibly.
Can staff be fired for refusing?
Possibly, depending on the context. However, it would seem prudent for employers to accommodate employees who are opposed to mandatory vaccinations by allowing them a leave until the Covid Epidemic is under control, or allowing them to work remotely where possible.
Policies
Employers dealing with these issues would be well advised to create comprehensive policies.
If you require legal advice in these areas, please feel free to contact us.
The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.
