The Government of Alberta declared a state of Public Health Emergency on September 15, 2021, and announced new directives to combat the ongoing impact of the COVID-19 pandemic. With this, employers continue to consider whether they can impose a mandatory vaccination requirement of their existing and new employees.
Employers have a positive legal duty to provide a safe workplace and ensure the health and safety and welfare of their employees under the Occupational Health and Safety Act in Alberta (section 3). If an employer wants to fulfill this duty, it is not unreasonable for them to consider mandatory vaccines to prevent the spread of COVID-19 within the workplace. It is important for employers to understand the laws that impact their ability to enforce mandatory vaccine measures.
Many employees are under the impression that their Charter rights prevent vaccine requirements from being implemented. In the case of private employers, this is not the case. The Canadian Charter of Rights and Freedoms applies only to government actors. It does not apply to the actions of private individuals or corporations.
While Charter rights do not apply, private employers are still required to follow human rights obligations under section 7 of the Alberta Human Rights Act. This section prevents an employer from discriminating against an employee on the basis of several protected grounds. When applied to the issue of mandatory vaccines, the applicable protected grounds are generally going to be physical and mental disability and religious beliefs.
As such, while it appears that it may be legal for employers to mandate vaccinations with a clear justifiable policy, they must also provide accommodation to employees who cannot be vaccinated for protected reasons of physical or mental disability and religious beliefs. The employer has the duty to accommodate employees with these protected exemptions up to the point of undue hardship. If an employer does not accommodate an employee up to this point, it may leave them vulnerable to a discrimination claim and a complaint to the Human Rights Commission of Alberta.
An employer can accommodate employees that meet the medical and religious exemptions in various ways. Such measures may include allowing the employee to work remotely. Whatever accommodation the employer provides, it must be clearly addressed in their mandatory vaccination policy.
What happens if an employee refuses?
In order for an employee to refuse the vaccine and request accommodation under section 7 of the Alberta Human Rights Act, they must provide proof that the vaccination is physically harmful due to a medical disability, or that it is inconsistent with their religion. Proof of a physical or mental disability requires something more than a simple doctor’s note stating the employee can’t get the vaccine. The letter must provide the physician’s medical opinion that the vaccination is a substantial risk to the employee either physically or mentally. Similarly, proof of a religious exemption requires more than a personal belief and the employee must provide evidence of long-term adherence to the religion from a person in authority at the religious institution.
If an employee refuses their employer’s vaccine mandate without providing proof of a human rights exemption, the employer may legally terminate the employment relationship without cause if necessary. Employers terminating employees on these grounds must comply with all applicable statutory and common laws requirements including termination pay and/or severance pay.
Legal Advice for Employer workplace vaccination mandates and drafting policies
Employers who are considering implementing a vaccine mandate and policy should seek legal advice. Property drafted policies will help to protect the employer from potential human rights violations, OHS charges under the OHS Act and civil claims, while meeting their duty to provide a safe workplace for all employees.
Ultimately, employers imposing any measure that potentially affects their employees’ rights should be prepared to defend their decisions in case of a legal challenge. To assist them in doing so, they should ask themselves the following questions throughout the process:
- Are the measures imposed necessary and justifiable, given the specific circumstances of our workplace, in light of our particular business?
- Are we using the least intrusive measures possible to reach our goal (for example, is imposing the vaccine on our employees the best way to avoid the risk of COVID)?
- Are we complying with all other applicable legislation and up-to-date government/labour board/health authorities’ guidelines?
- Are we protecting employee privacy at all times?
- Are we complying with human rights legislation and accommodating employees where necessary (e.g. religious and medical reasons)?