Dear Mr Brown,

I would like to know whether an employer in Canada can make it mandatory for employees to take the COVID-19 vaccine. Wouldn’t that infringe on constitutional rights of the employees? I am interested in migrating there. However, I believe this is a human rights issue and I would expect Canada to uphold the rights of people.

PG

Dear PG,

The Constitution is the supreme law of a country, setting out the parameters by which society is to be organised and governed. Accordingly, all laws passed by Parliament must be consistent with the Constitution. Any law, governmental programme or activity that violates the Constitution would be unconstitutional. As such, it is the Government, rather than a private business or individual, that would violate one’s constitutions rights. A Bill of Rights and other statutory instruments (human rights, employment rights, etc) would apply to private employers who violate the rights of employees. It is a technical, but important distinction.

There are relevant issues such as the nature of an industry and whether employees are unionised. Depending on the nature of the employment and the risk associated with it, certain employers have a stronger case for making the COVID-19 vaccination a condition of employment (eg, hospitals, medical clinics, long-term care, group homes, retail, service industry).

I am not an expert in Jamaican law. I read recently that the Ministry of Labour and Social Security has advised that Jamaica’s current laws do not support mandatory vaccination against COVID-19 for workers. I believe this is consistent with your views. However, I find that employers in Canada have a right to implement a COVID-19 vaccine mandate for employees. I would imagine that such policies would be implemented, based on reaching a threshold regarding availability of the vaccine to the general public.

Safe work environment

An unvaccinated employee poses a great health risk to one’s self and others. A vaccine is not a cure, but it deals with lowering the probability of infection. The rationale is that if everyone decreases the risk of infection in this manner, then it would prevent the spread of the virus.

Herd immunity, meanwhile, occurs when a large portion of a community (the herd) is vaccinated, making the spread of disease from person to person unlikely. As a result, the whole community becomes protected, rather than just those individuals who are vaccinated. As such, vaccines should not be perceived from the perspective of personal health, but as a public health matter.

Implementing a mandatory vaccination programme in the workplace is within the ambit of usual management rights provided that safeguards to employee rights are respected. A mandatory vaccination programme is both reasonable and some would argue necessary, in light of the pandemic.

Employers not only have the right, but a duty of care and corresponding obligation to have health and safety policies for employees, customers and other stakeholders to take reasonable steps to reduce foreseeable harm of the spread of the virus. Such policies should be applied fairly and equitably. There should be nothing arbitrary about such policies in terms of timelines or targeting unjustly targeting specific employees. This would include social distancing, washing hands and wearing masks, remote work, as well as other methods. An employer would be negligent if they did not have such policies.

Accordingly, it is reasonable to:

• Mandate any COVID-19 vaccines approved by Health Canada and/or the World Health Organization;

• Require proof of having been fully vaccinated with an accepted vaccine or of having received the first dose of a two-dose vaccine.

• Have repercussions for those who make false attestations about, or provide false documents related to, being vaccinated may be subject to disciplinary actions, up to and including termination.

Condition of employment

I am not suggesting that an employer can physically compel an employee to be vaccinated. However, an employer can make COVID-19 vaccination a condition of continued employment in the context of establishing a healthy and safe work environment, which would supersede the right to private medical decisions that an employee enjoys.

Medical or religious exemption

Terminating an employee for a medical condition or religious belief is considered discrimination under the Human Rights Code.

Requests for medical exemptions, meanwhile, would ordinarily be considered and subject to review by medical specialists. Clinical trials usually identify potential side effects and allergic reactions to the ingredients of a vaccine, so it would entail more than self-declared risk of harm.

Religious exemptions would ordinarily be considered and subject to appropriate inquiries to verify the authenticity of a creed/religion-based claim.

Severance

That being stated, it is extremely important to keep in mind that as a practical matter, an employer can terminate an employee for no cause as long as appropriate amount of severance is paid to the employee mandated by the employee’s written employment contract or in the absence of a written contract, the common law. Accordingly, I maintain that employees could be terminated for not complying with vaccine mandates, which would be upheld. Unfortunately, it can be expensive and time-consuming for employees to seek legal recourse in such situations, if they believe their employment rights were violated.

Incidentally, Canada will require visa holders to be fully vaccinated for non-essential travel to Canada as well.

I sympathise with your position, but I am just responding to your question.

Please visit JAMAICA2CANADA.COM for additional information on Canadian permanent residence programmes, including express entry, the study & work programme, visas or appeals, etc.

– Antonn Brown, BA, (Hons), LLB, MSc, RCIC, is an immigration counsel and an accredited Canadian education agent of JAMAICA2CANADA.COM—a Canadian immigration & education firm in Kingston. Send questions/comments to documents.jamaica2canada@gmail.com