Vaccine Mandates for Non-Unionized Employees

There are excellent resources and general information as it pertains to employment law in various context on our website. This post offers up advice from someone with 12 years experience in human resources. Most of her points are directly applicable to a non-unionized environment, however the same principles apply. The main difference being how you seek remedy. For unionized employees, you must use the union grievance process.

If you are being told that you must get vaccinated in order to keep a job, read on for some (hopefully) helpful information. I am not by any means a lawyer, and every situation is unique, but generally these guidelines can help get you started.

First, let me start by saying there is a very good reason why these mandates were not imposed on employees in the private sector. Quite simply, it’s because the Government doesn’t have the authority to implement company policies. Sure, they can tell businesses that must have a policy ABOUT something, (such as a drug and alcohol policy, according to Occupational Health & Safety regulations) but they can’t tell businesses what the policy needs to SAY or what to mandate in their workplace. In their announcements, it was stated by Public Health that businesses can implement their own policies and should do their “due diligence”. This is because a HUGE number of businesses (if not all) would be challenged to legally mandate a vaccine. Let me explain…

In order to make something discriminatory a “condition of employment”, an employer needs to be able to prove that it is a “bona fide occupational requirement” (BFOR). The Supreme Court of Canada has clarified that there is a “test” or set of standards that must be met in order to qualify something as a BFOR:

1. It needs to be directly related to job performance (you need to meet this criteria in order to safely perform critical aspects of your job)

2. It must be adopted in good faith (it wasn’t intended to be discriminatory - like “we don’t hire women because they’re not strong enough to lift boxes in the warehouse”)

3. It’s reasonably necessary (this is the big one, and it basically means there is no other reasonable or less invasive way to do the job), and employees who feel discriminated against cannot be accommodated or it would cause “undue hardship” to the business.

Here is a great article from go2HR that explains BFOR in simple terms.

So how does an employer determine if the vaccine is needed in order to safely perform a job? Well, they better do a very thorough and well documented job analysis. A job analysis would require an employer to break down every job task and assess the risk level. The risk must be “measurable” or “quantifiable”. Simply stating "it’s a risk to the public to be unvaccinated" would probably not fly. Your employer would need to show this empirically. They would then need to show that the risk cannot be mitigated by other measures (masks, barriers, social distancing, working from home, testing, etc...)

If my employer came to me and said I must get vaccinated by a certain date or face administrative or disciplinary action (up to and including termination), I would definitely ask for that in writing. Then I would request they also provide a copy of their documented job analysis with that notice. I would carry on working (business as usual) until I received that information. Once I received my written notice and job analysis, I would ask my employer to clarify for me (in writing) which aspects of my position are dangerous if I am not vaccinated. I would then ask them to explain (in writing) what accommodations were explored, and why they determined those accommodations would be considered insufficient, or undue hardship. Undue hardship is not an easy thing to prove as it is - you can’t just say something like “it costs more money for me to accommodate you", it needs to be more substantial than that.

If they’ve been able to mitigate risk for the last 18 months by wearing masks, social distancing, working from home, or whatever other measures, why is it suddenly a hardship? It isn't, and it's unlikely a judge (or union arbitrator) would say it is.

Any communication about this issue, once the written notice is received, should be in writing either via letter or email. It’s important to hold onto documentation and correspondence to support that your job was threatened, that a sufficient job analysis was (likely) not conducted, and that reasonable accommodations (to the point of undue hardship) were not properly considered. Don’t assume that a resignation will mean that you can’t sue for wrongful dismissal (or file a grievance for reinstatement), as you may have a case for constructive dismissal, though I would recommend against this action if you can avoid it since it only complicates matters.

Lastly, some employers may try to layoff (unionized) or put employees on an unpaid administrative leave who refuse the vaccine, thinking the employee will either cave to the policy or go find another job (and thus no severance would be payable). Any forced unpaid time exceeding 6 days can be considered a termination and you will be owed adequate severance (pay in lieu of notice). It's worth noting that in Canada, private employees with under 10 years tenure with a company are not entitled to a particular job. A company has the right to terminate you without cause at any time, but they must pay you the appropriate level of severance. There are minimum statutory requirements but common law precedent typically far exceeds these minimums so be prepared to negotiate and litigate if your employers attempts to terminate you without paying any severance or by getting by with the bare legal minimum.