Andrea Raso has no problem getting vaccinated for COVID-19 — in fact, she plans to be first in line when her times comes.
But the employment and human rights lawyer at Clark Wilson LLP in Vancouver knows that won’t be the case for all workers across B.C. who may object to vaccinations for religious or personal reasons, or perhaps even because of conspiracy theories.
“If somebody would have asked me last year at this time if employers could mandate people wearing masks in the office and taking their temperature, they would have laughed, right?” she said.
“But what the law right now would say is, you take away the pandemic and typically employers don't have a right to mandate those sorts of things.”
And with hundreds of thousands of vaccines set to roll in to Canada by the end of December, Raso has been fielding an increasing number of inquiries from clients regarding whether they can mandate vaccinations for employees.
“For the most part, no, employers cannot require employees to vaccinate,” she said, although she was quick to add that not everything in the law is black and white on this issue.
For instance, it might be possible that certain industries will be permitted to mandate vaccinations, such as in health care.
But Raso said that the authorization would have to come either through an order from the Provincial Health Officer or else legislation.
She doubts, however, any legislation would be introduced.
“We have other ways to mitigate the risk,” she said.
Employers can mandate measures in the workplace such as physical distancing, mask-wearing and following arrows to keep people from coming into close contact.
Meanwhile, some employees have been telling Raso’s clients they don’t feel safe coming into the workplace because of colleagues not abiding by guidelines.
“I think that will only increase in the future,” she said.
Another issue to consider: What happens to employees who are told to work from home if they refuse to abide by safety guidelines set out by employers.
“The employer has to be careful with that,” Raso said.
“If the employee says: ‘I want to be in the workplace and that's the best way I could work,’ and the employer insists that they remain at home, you could possibly see some constructive dismissal kinds of allegations.”
And some question marks also hang over the Pfizer Inc. (NYSE:PFE) and BioNTech SE (Nasdaq:BNTX) as the first 3,900 doses have commenced being administered in B.C. this week.
Dr. Bonnie Henry, B.C.’s provincial health officer, said Thursday (December 17) she’s been receiving a number of questions about why the vaccine is not being recommended for those who are immunocompromised:
“The clinical trials expressly excluded people with those conditions and focused on primarily health populations of people of different ages,” she said.
Raso said it’s perfectly fine for employers to encourage employees to get vaccinated — but what happens if they’re urging a pregnant or immunocompromised worker to do?
“You have a situation where it might not just be somebody’s choice. It may be really that they can't take it,” Raso said.
“And so the employer pressing them on that or not allowing an accommodation where they can still work but they have to be masked, I think, will likely create some situations as well.”
