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Can my employer force me to take a COVID-19 vaccine?


The world breathed a collective sigh of relief in December of 2020 when it was announced that vaccines for COVID-19 had been developed and passed regulatory approval. However, that development has also raised many questions about whether employers can require their employees to get vaccinated.

While COVID-19 vaccines are new, various forms of mandatory flu vaccination policies and/or so-called “VOM” (vaccination or mask) policies have been in place, and the subject of legal challenge, for years in the health care sector. This case law provides a framework for assessing the legality of policies on a COVID-19 vaccine.

Generally, in determining whether a vaccination policy is reasonable, arbitrators have applied principles of proportionality. That is, they will balance the public health risk against the impact of a policy on an employee’s bodily integrity, privacy rights and economic interests. They have held that vaccination policies should not exceed what is necessary to address the actual level of risk and should use the least restrictive measures possible. Although not determinative, the strength of medical evidence for or against a vaccination policy has been a key factor in assessing its reasonableness.

The features of reasonable vaccination policies include the following:

  • They provide all employees with the choice of whether to be vaccinated, although that choice may entail economic consequences (i.e. unpaid leave);
  • They may require employees who refuse to be vaccinated to take unpaid leave for the duration of an outbreak; and
  • They exempt or provide accommodation to those employees for whom the vaccine is contraindicated. Policies that fail to accommodate employees for whom the vaccine is contraindicated will be found to be discriminatory. These accommodations may include paid leave or modified work. However, to establish that a COVID-19 vaccine is contraindicated, a demonstrable risk of serious harm to the employee must be shown.

In light of this case law, it is reasonable to expect that in the health care sector, employers will be able to require vaccination.

Requiring non-health care workers to be vaccinated would be an exceptional measure. However, in the current context, employers may be able to justify a mandatory vaccination policy in all workplaces in light of the medical evidence and the general public health risk. However, for such a policy to be reasonable, it would need to provide employees with a choice of whether or not to be vaccinated. Given the success of work from home in recent months, a reasonable choice may be to allow workers who choose not to be vaccinated to work from home, where the situation allows for it.