Several big companies exploring mandatory vaccination policies for Canadian staff. Twitter already has one
Businesses can require workers to be inoculated, but there are exceptions: lawyers
When Twitter eventually reopens its offices in both Canada and the United States, the company says employees who choose to return to the workplace must be fully vaccinated against COVID-19.
"Safety was the reason," Twitter Canada spokesperson Cam Gordon said in an email.
Twitter has about 150 employees in Canada, largely based in Toronto. The social networking service is one of several businesses that has introduced a COVID-19 vaccination requirement for employees returning to the workplace.
But other companies are still on the fence, as they try to determine their rights in mandating such a policy.
On Friday, the federal government announced it will soon require its federal employees and those working in some federally regulated sectors, such as airlines and railways, to be fully vaccinated. But private businesses that don't fall into that category are left to decide for themselves whether they should impose a vaccination requirement.
"There are businesses that are interested in mandatory vaccines," said labour and employment lawyer Peter Straszynski with the Toronto law firm Torkin Manes. "Clients are asking whether it's legal for them to do it and what the restrictions are on their ability to do it."
When their offices reopen, Google, Uber, Lyft and Netflix will each require that their in-office U.S. employees be fully vaccinated. Those companies told CBC News that they're exploring the same policy for their workers in Canada.
"We currently are looking into local regulations globally where all our sites are located, including Canada," Google spokesperson Wendy Manton said in an email.
Google has 2,000 employees at offices in Toronto, Waterloo, Ont., and Montreal.
Is it legal for companies to require employees to be vaccinated against COVID-19?
In the U.S., the Equal Employment Opportunity Commission updated its guidance in May to state that — subject to some limitations — federal EEO laws don't prevent an employer from implementing a vaccination requirement.
In Canada, Straszynski says occupational health and safety legislation requires that employers protect their workers from health and safety risks in the workplace. But he said companies adopting a vaccination policy must accommodate workers not able to get vaccinated for medical or religious reasons.
"My view is that you can mandate vaccinations, you just have to be careful of the exceptions. And the exceptions are human rights."
Labour and employment lawyer Hermie Abraham said employers should do their homework before mandating a vaccination policy, as not all workplaces may be able to justify such an extreme measure if faced with a legal challenge.
"The requirement for the vaccine would have to be connected to a real, substantial ... threat of an outbreak within the workplace or the need to protect vulnerable people within the workplace," said Abraham, with Advocation Employment Law in Toronto.
She said private offices in particular may face difficulties justifying a vaccination requirement if there are other ways an employer can make the workplace safe, such as mandating mask wearing and physical distancing.
"Legally, the vaccination requirement would be seen as necessary if there was a very limited way for the employer to be able to keep people safe," Abraham said in a followup email.
Unvaccinated employees stay home
Abraham said offices may be able to avoid challenges to their vaccination policy by offering options to unvaccinated employees, such as providing regular COVID-19 testing or allowing them to work from home.
Aercoustics Engineering Ltd., which has 50 employees, reopened its Mississauga, Ont., office in late July. But employees who choose to work in the office must be fully vaccinated. Those who don't want to comply are instructed to continue working from home.
"You will continue to have your job, but it means that you will not be able to do it in person," said Steve Titus, the company's president and CEO. "What COVID has shown us is that we can still work [remotely]."
Titus said he consulted with legal experts when drafting the policy and so far has heard no complaints from staff.
"We felt that as a business and private industry, maybe we have a better chance of protecting our team and also our communities if we promote vaccination."
Waiting for government direction
The murky territory that companies may encounter when mandating COVID-19 vaccinations has prompted some businesses to back away from adopting such a policy.
Goodlife Fitness says it encourages its 11,000 employees working at gyms across Canada to get vaccinated. However, the health club chain said it would need government regulation or guidance before requiring employees to be vaccinated.
"This is all new to us," said Jane Riddell, Goodlife's president. "The legalities of a mandatory vaccination requirement, they're not clear to us, and that's why we feel that government really needs to step up and provide this leadership role."
On Friday, Ottawa did step in — but only to mandate vaccines for federally regulated workers.
Most private companies fall under provincial jurisdiction. The federal government said during a news conference that it encourages provinces to address the issue of vaccine requirements with local businesses.
"We have certain jurisdictions over certain industries, and this is what we're working on," federal Transport Minister Omar Alghabra said. "We hope that the other sectors will follow our example and set a similar standard for their employees and their workplaces."