The answer would be possibly or generally YES.
Employer’s duty under the Occupational Health and Safety Act for Alberta
Under the Occupational Health and safety Act for Alberta, the employer has a duty to ensure that the work environment is safe for all workers. Section 3(1) (a) (i) (ii) (iii) of the Act mandates that every employer shall ensures, as far as it is reasonably practicable the health and safety and welfare of workers engaged in the work of that employer; those workers even though not engaged in the work of that employer but who are present at the worksite; and other persons at or in the vicinity of the worksite who may be affected by the hazards originating from the worksite. Thus, this provision obliges the employer to create and maintain a healthy work environment for everyone in the employer’s workplace whether or not they are working for the employer. Covid-19 is a highly contagious disease and has the propensity to make the workplace unhealthy and unsafe for the workers or anyone present. It goes without saying therefore that if one employee contracts Covid-19 virus, there is a higher likelihood that all or most of the workers who come in contact with the said employee would become sick of the same virus.
Employers are therefore within their rights to make mandatory for their employees to be vaccinated against Covid 19 as an effort to keep workplace safe.
Employees’ duty under the Occupational Health and safety Act for Alberta
Furthermore, the responsibility to keep the workplace safe and healthy is not just on the employer; all the employees too have the duty to ensure a safe working environment for themselves and the rest as per Occupational Health and safety Act for Alberta section 5 (a) (b) (i) (ii) (iii)
The above provision creates an obligation for “every worker “ while engaged in an occupation to (a) take reasonable care to protect the health and safety of the worker and of other persons at or in the vicinity of the work site while the worker is working; (b) obliges the workers to cooperate with the worker’s supervisor or employer or any other person for the purposes of protecting the health and safety of the worker, other workers engaged in the work of the employer, or other workers not engaged in the work of that employer but present at the work site at which that work is being carried out.
Given that both parties have this obligation to ensure the safety of the work environment, and considering the effectiveness of the Covid 19 vaccine, isn’t it plausible that vaccination should be made mandatory for all workers?
The employee may need to check out whether the employer has a policy to vaccinate all employees against Covid19. Any violation of company policy could create a potential legal ground for termination unless there are strong justifications to the contrary.
Schools of thought to the contrary
There are schools of thought that the Covid 19 vaccination as all other health choices should be made by the individuals receiving them and not by their employers. Thus, imposing the Covid 19 Vaccine on anybody violates some of these fundamental rights of private citizens.
1. Individuals with Health Concern
One of such schools argues that a mandatory Covid19 vaccination policy would negatively affect the rights of employees with conditions not acceptable for the vaccine, such as people with allergies that could be made worst by the vaccination.
The employers have a duty to adjust company rules, policies or practices to enable employees with needs to participate fully in the work. This is called the employers’ duty to accommodate. However, the duty to accommodate is not absolute, the employer could accommodate the employee’s needs up to the point of undue hardship.
What then constitutes “undue hardship”? This depends on the circumstances in any given case. For instance, an employee with a valid health claim against the particular Covid-19 vaccine afforded by the employer would have to be accommodated if there is a possibility of the employee working from home. Refusal to let the employees work from home could violate the employees’ right to accommodation. However, if working from home is not possible, and no other way to accommodate the employees’ needs, the employer would be justified to impose the Covid 19 vaccine or terminate the employees’ on the ground that accommodation would cause “undue hardship” to the employer . This is because accommodating the employees without vaccine would be risky for other employees.
2. Freedom of Religion
Another school of thought points to the Canadian Charter of Rights and Freedoms Section 2 (a) as a genuine defense against mandatory imposition of the Covid19 vaccine that runs afoul individual’s religious beliefs. This section of the Charter provides that everyone has the following fundamental rights , “freedom of conscience and religion”.
First and foremost, it is important to note that the Charter applies to the government action (the federal, provincial or municipal government). The Charter does not apply to private interactions between individuals or private businesses. With the foregoing therefore our discussion on mandatory Covid19 vaccine and Religious Freedom in this section is limited to the narrow context of employees within the public sector.
The Supreme Court of Canada tried to define Freedom of Religion under section 2(a) of the Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms in Syndicate Northcrest v. Amselem  2 S.C.R. 551.  2 SCR 551. The Court set out the following test:
1. A person must show sincerity of belief – sincerely held religious belief
2. The impact/interference must be more than trivial
3. The religious practice cannot potentially cause harm, or otherwise interfere with the rights with others.
In our case therefore the Court would need to decide first if the employee sincerely believes that the mandatory COVID 19 vaccination policy violates their religious rights (offensive to Charter Rights). Secondly, whether that infringement is trivial or insubstantial. Lastly, whether the religious practice to abstain from Covid 19 vaccination cannot potentially harm or otherwise interfere with others’ right. It is arguable that a mandatory Covid19 vaccination policy if found to be a violation of individual ‘s religious rights, such infringement would not be trivial. However, the policy would pass with the third prong of the test requiring that the employee’s belief should not potentially be harmful to others. Given that Covid19 is a contagious disease and refusal to take vaccination puts other employees at risk of contaminations.
3. Unionized workplace
The Employers’ policies in unionized workplaces are guided by considerations such as collective agreement language, and a “reasonableness test”. There are many things that may render a policy “unreasonable”. To determine its reasonableness for instance a policy is put on a scale and its benefits weighed against its level of intrusion into the employee’s privacy by collecting personal health information. If the benefits outweigh the intrusion, then the policy is reasonable and vice versa. Thus, if the benefit of the mandatory Covid-19 employee vaccination outweighs the intrusion into privacy of the employees, then the policy should be adopted. Looking at the vast benefits of getting a heard immunity in the workplace and the absent of more economical and convenient alternatives, it is arguable that the mandatory Covid19 vaccination would tip the scale against the intrusion into privacy.
Should you have any questions, please contact Louis Fombon at Shim Law via [email protected] or 403 – 476 – 2011.
Louis Fombon is a Lawyer with Shim Law in Calgary Alberta and he is well versed with the Employment Law of Canada. Do not hesitate to contact him should you have any employment questions including but not limited to;
a) Discrimination and Harassment at Your Job.
b) Wrongful Discharge/Termination of Employment.
c) Family and Medical Leave Act (FMLA)
d) Minimum Wage, Overtime, and Misclassification.
e) Unsafe Workplace Complaints and Conditions.
f) Workers’ Compensation for Illness or Injury on the Job.