On one side there is no legal requirement for a person to receive a Covid-19 vaccine. On the other side, many employers are currently grappling with the consequences of employees who fail to follow public health guidelines to the potential harm of other employees or the general public.

The issues at stake here are: privacy and human rights considerations vs public health.

Concerning the possibility for employers to mandate vaccination, at the moment, there is no public guidance or law requirement: “the outcome of the balancing of competing employer/public and employee interests in mandatory vaccination is extremely context specific. What is permissible in one workplace may not be in another. What is not permissible now may be permissible at another time as conditions change (e.g., a spike in cases, hospitalizations, or deaths), as more becomes known about the vaccines and their effects, or as the government intervenes”.

However, there have been at least two cases in which adjudicators have had to consider competing employer and employee interests in the context of the Covid-19 pandemic.

In the first case, following governmental recommendations on Covid-19 surveillance testing in long-term care homes, an employer obliged all employees to have a Covid-19 test every two weeks. As an alternative, employees were required to wear protective equipment or would be held out of service until testing was undertaken. The union challenged the policy as an “unreasonable exercise of management rights”, and analogized the testing policy to policies concerning mandatory drug and alcohol screening. 

The arbitrator held that “the employer’s mandatory Covid-19 testing policy was both consistent with the collective agreement and was a reasonable exercise of the employer’s management rights”. No comparison with alcohol and drugs was admitted because the effects of drugs and alcohol are not infectious. Moreover, the testing was reasonable in the specific context of a care home, where all outbreaks could be highly dangerous and must be avoided by all means.

In the second case, an employee was dismissed after she failed to respect public health guidelines to prevent the spread of Covid-19 and put her colleagues and the general public at risk.

The arbitrator found the dismissal for cause justified as the employer had previously informed all employees of the need to follow public health guidelines and raised awareness of those guidelines.

In the absence of a clear governmental policy on Covid-19 vaccination, these cases pave the way to an increased number of employment disputes in the near future. For instance, the debate is now covering issues such as the possible competitive advantage of a vaccinated workplace vis-à-vis customers, or the “vaccination passports” for international travelling.