UPDATE: We promised to provide consultations for 100 people at our expense, and we delivered. But going forward we are going to funnel our resources into more strategic cases.
Are you being forced to vaccinate? If so, you can find some helpful legal information below:
*All content on this website is intended for the provision of general information only and does not constitute legal advice. You should contact a lawyer to obtain advice applicable to your particular situation.
A. Can employers mandate compulsory vaccination policies?
Employers have the authority to mandate employment policies, as long as these policies are not in contravention of the law, including human rights legislation and the Canadian Charter of Rights and Freedoms, where applicable.
As such, employers have the power to mandate compulsory vaccinations in their workplaces. However, employers must: a) respect valid exemptions from mandatory vaccination policies, and b) accommodate legitimate requests for accommodation based on recognized protected grounds.
The constitutionality of mandatory vaccination is currently in a state of flux. This is because the courts have not yet rendered a decision about the constitutionality of mandatory vaccination policies. Until the courts declare mandatory vaccination to be unconstitutional in general, the employers are able to implement mandatory vaccination policies but must provide reasonable accommodation to the point of undue hardship to their employees who have valid exemptions from vaccination.
B. Which exemptions from vaccination are set out in human rights legislation?
According to provincial and federal human rights legislation, a compulsory vaccination policy cannot be applied to employees who cannot be vaccinated due to their religious beliefs (and/or “creed” in SK, MB, ON, NB, NS, PEI, NWT, YK and NU), or mental or physical disability.
The religion must be a bona fide recognized religion and does not include personal moral, ethical or political views.
The definition of “creed” had not yet been adjudicated by the human rights tribunals or courts in the context of mandatory vaccination policies.
In addition, “political belief” is a prohibited ground of discrimination in some provinces (MB, BC, QB, NFLD, NB, NS, PEI, NWT, YK). A political belief in the context of mandatory vaccination policies has also not been adjudicated by the human rights tribunals or courts.
C. Does the Canadian Charter of Rights and Freedoms apply to me?
The Canadian Charter of Rights and Freedoms (“Charter”) applies to government action only. Employees working in the private sector cannot raise Charter challenges to workplace policies mandated by private companies.
Section 2(a) of the Charter provides that everyone has the freedom of conscience and religion. Section 2(b) of the Charter provides for freedom of thought, belief, opinion and expression. Section 7 of the Charter states that everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 15 of the Charter states that every individual has the right to equal protection of the law without discrimination, in particular, on the grounds of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
However, section 1 of the Charter, states that the right and freedoms set out in the Charter, can be violated, as long as the violation can be demonstrably justified in a free and democratic society. Further, section 33 of the Charter, known as the “notwithstanding clause”, allows governments to exempt their laws from certain sections of the Charter, including sections 2, 7 and 15.
D. Can employers require employees who work from home to be vaccinated?
Generally, mandatory vaccinations should not be implemented for those employees who work exclusively from home. However, the employer usually has the ultimate power to decide whether an employee can work from home.
E. What should I do if my employer has a compulsory vaccination policy and I am not able to vaccinate?
Ask your employer about its accommodation and exemption policy. All employers have an obligation to accommodate disabilities and religious beliefs in accordance with applicable human rights law, up to undue hardship, though they do not always inform their employees about its existence. Review the policy and determine whether you qualify for an exemption. If you qualify for an exemption, ask for accommodation.
F. What should I do if I am a member of a union?
You should approach your union representative and discuss available accommodations or exemptions. Employees in a unionized environment must deal with the employer through their union. This is because, generally, only union stewards are able to negotiate employee concerns with the employer. Further, only unions are able to challenge an employer who violates the law or the collective agreement. Usually, this challenge is done through labour arbitration procedures as contemplated in your collective agreement. Individual employees have no standing in court to complain about mistreatment or wrongful dismissal when they are unionized.
The unions have a duty to fairly represent their members. If you believe that your union acted unfairly, you can file a complaint against the union with a labour relations board.
G. Can I be fired for refusing to vaccinate?
An employer is permitted to terminate an employee for any reason without cause, upon provision of adequate notice, as long as the reason for termination is not discriminatory. Employees who refuse to be vaccinated based on protected grounds (religion or medical disability) should not be fired for refusing vaccination. If you have been wrongfully dismissed, you can sue your employer in court and/or file a complaint with the human rights tribunal.
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