As B.C. cities consider mandatory COVID-19 vaccines for workers, lawyer outlines challenges for employers

VANCOUVER (NEWS 1130) – As COVID-19 cases start to climb across the country, and as the Delta variant continues to spark concerns, talk about mandating vaccines against the virus has been growing — but can that be done legally?

The City of Toronto announced on Thursday all municipal employees must be fully vaccinated by Oct. 30. Canada’s biggest city also said employees will be required to tell their employers if they’ve been vaccinated by Sept. 13.

The move has many wondering if other municipalities and businesses will follow suit.

Vancouver, Port Coquitlam consider vaccine mandates

Both the mayors of Vancouver and Port Coquitlam say all options are being considered in the fight against COVID-19, including the potential of mandating vaccines for municipal workers.

“Vaccines are the best tool we have to bring this pandemic to an end and return all our lives to normal,” Vancouver’s Kennedy Stewart said Thursday.

He says the City of Toronto has a different governing structure, with the health authority directly under mayor and council. In Vancouver, he notes the city works with its health authority and provincial officials and will take direction from them.

“If we found there was need, we could act on our own if we needed regarding the city staff and premises,” Stewart added.

Just off the phone w/@KennedyStewart who also says all options are on the table, including mandating vaccines for city employees. He adds they're monitoring the situation daily and working/taking direction from Dr. Bonnie Henry and her team.

My story: https://t.co/4lI9rkBjLE

— Sonia Aslam (@SoniaSAslam) August 19, 2021

“I wouldn’t take anything off the table that’s going to keep our community safe,” echoed Port Coquitlam Mayor Brad West, adding, “vaccinations are a huge part of us getting past COVID.”

West plans to discuss the matter with the city’s chief administrative officer to understand what potential opportunities there are with such a mandate.

“Obviously, as an employer, you have to within employment law. You have to operate within human rights law and you also have to operate within collective agreements that may be in place.”

He adds as a father of two young children, he’s determined to try and protect them from the virus.

“I am double vaxxed and I am encouraging people to do that,” he said. “I am on the younger side of the demographic, and I’ve certainly been encouraging people my age and younger in our community to get vaccinated. Vaccination is how we are going to get past COVID and we really need to step it up.”

Re: mandatory vaccines in the workplace. "Sometimes I think people can get a little selfish about this and it's all about me, but we would do well to remember… this is about all of us and particularly about keeping our kids safe," says @BradWestPoCo.

— Sonia Aslam (@SoniaSAslam) August 19, 2021

Stewart says the conversation is ongoing within the city. He adds discussions are also taking place with municipal workers.

He tells NEWS 1130 worker and resident safety is top of mind.

“In the end, our goal is to bring this pandemic to an end,” the Vancouver mayor said.

He admits he’s concerned about the pandemic situation. However, while cases have crept up across B.C. in recent weeks, Stewart notes Vancouver has a high vaccination and low infection rates.

Should that change, he says the city is ready to take action.

“But also we want to make sure that people have as much freedom to conduct their daily business as much as possible, so we don’t want to overreact,” he explained. “That’s what we’ve done over the last year and a half is work very closely with the health authorities to take the best advice we can and act when necessary.”

Mandating vaccines in the workplace

TransLink says it, too, is considering a mandate for its workers, but no decision has been made yet.

The transit authority says it will consider “all aspects of making vaccines mandatory and procedures for those who are not able or choose not to.”

“We are in talks with health officials, unions, senior levels of governments and other transit agencies as we evaluate the best ways for employees to protect themselves and their families against the virus,” TransLink said in a statement.

However, when it comes to businesses, the decision to mandate vaccines isn’t simple.

One employment lawyer says there are a number of things to consider before such a move is made.

“The first thing to consider is whether the workplace is a unionized or a non-unionized workplace,” explained Nathan Rayan with North Shore Law, adding it’s “a completely different landscape” between the two.

“Any unionized workplace has to operate within the constraints of the collective agreement for that workplace.”

Related video: Mandatory vaccinations become divisive election issue

On the non-unionized front, he says businesses will have to understand what they can and can’t do will differ when it comes to existing and prospective employees.

For the former, he says “in almost all cases, refusing to get vaccinated is not going to constitute just cause for termination.” However, that doesn’t mean an employee can’t be fired.

“You can always fire an employee for no reason at all, or for a reason that doesn’t meet the legal standard of just cause. But in that case, you’d have to provide that employee with notice of termination or with severance pay in lieu of notice of termination,” Rayan explained, adding the question for many employers, the question is, “how can we make them do it?”

Legislation

He says there may be cases where there’s a “real, bonafide job requirement to be vaccinated.” On another side, legislation would enable businesses to mandate vaccinations for employees — something the federal government is doing for federal employees.

However, no such legislation exists in B.C. as of yet.

“But, I think it’s probably coming,” Rayan said, adding if that does happen, everything will come down to the specifics in the wording.

“It might give some employers the ability to make that a hard requirement, and then those employers would be able to take the position that a refusal of the employee constituted cause to fire them without notice.”

Until that happens, though, Rayan says companies could be opening themselves up to some tricky situations.

“I imagine that probably will happen,” he told NEWS 1130 about potential lawsuits and people quitting in droves if companies force employees to get the jab before any laws are brought in.

Human Rights Code

He notes there is “one major landmine” in B.C. that he expects will prompt litigation.

“In B.C., there’s the Human Rights Code which has certain, protected personal characteristics that makes it illegal to discriminate in the workplace on the basis of those protected characteristics,” Rayan explained.

In the case of mandatory vaccines, he says there would be two protected characteristics that could create challenges for employers.

The first would be a medical disability. Many people are unable to be vaccinated because of a medical disability. If an employee has one of these medical disabilities and is terminated by an employer, even if there is legislation or a bonafide need for them to be vaccinated and they are not, a strong case could be made against the company, Rayan said.

The second, which Rayan says “is going to be more interesting” to watch, is around freedom of religion. He points out there are many religions and even sects of those religions.

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He expects there will be some people who try to use religion as a basis for avoiding the jab.

“We’re going to get into a question of what constitutes a religion. How official does the dogma have to be in order to excuse you?” Rayan told NEWS 1130.

Rayan stresses taking a “not-believing-in-science” stance, thinking the vaccine contains microchips, having a strong personally held belief that vaccines can’t be trusted, or any other similar arguments will not meet the standard of the Human Rights Code for being disability that excuses you.

Meanwhile, when it comes to hiring new employees, Rayan says employers have more leeway, though they are still subject to the same limitations on discrimination.

“Aside from a recognized disability or recognized protected ground in the Human Rights Code, employers are free to hire people based on fit, and they are free to discriminate in any way that’s not illegal. So it would not be illegal for an employer to say, ‘hey, any new employees have to be vaccinated unless they have a Human Rights Code exemption.”