According to Toronto employment lawyer Howard Levitt, employers may face up to a $10-million fine for carelessness towards COVID-19 under the Ontario Emergency Management and Civil Protection Act. Employers face additional massive fines under the Occupational Health and Safety Act. Also, an employer may be found sufficiently wanton in their efforts to protect employees, could potentially face a year in jail.
On top of those threats, employers who fail to keep their workplace adequately safe and in compliance with the relevant standard of care prescribed by the public health authorities, would also face the legal action of negligence from employees and third parties. Employees who are ill and enter the workplace and infect co-workers, customers or vendors and these individuals then transmit it to their families or others as a result of insufficient precautions, could result in legal actions against the employer, with court decisions potentially in the millions of dollars. If the workers in question are covered by The Workplace Safety and Insurance Board, then the employer will avoid the lawsuit, at least with respect to their own workers, but will quickly see their WSIB premiums surge.
There is one solution, which will avoid every one of the above risks. That is requiring all employees to be vaccinated against Covid19. Negligence, as well as the public health statutes, is based upon employers falling below a reasonable standard of care and employees being stricken as a result. No one can challenge an employer, who insists on their employees’ vaccinations, as negligent. Given those stark choices, which employer will not insist upon vaccinations.
Can employers require employees to be vaccinated in order to remain employed? Under employment laws, safety trumps privacy. In addition, negligence is based upon non-compliance with the prevailing standard of care.
Once public health authorities deem it appropriate to recommend vaccinations for everyone and vaccines are sufficiently available to enable that, there will be a strong argument that not requiring vaccinations will be negligent. There is no basis to require vaccinations for employees who work entirely remotely but, as vaccinations become required and offices reopen, there will be much fewer of those.
In addition to avoiding liability, employers requiring vaccines will become the employer of choice, for staff and customers will prefer attending their offices. As vaccine rollouts accelerate, those having to avoid working in the office to protect vulnerable family members will no longer be able to claim that and employers will be able to order them back to work.
The trend to compulsory mainstream vaccinations may start with U.S. companies imposing their requirements on their Canadian branches. The Equal Employment Opportunity Commission (EEOC) said that U.S. employers could require employees to be vaccinated against the flu in its 2009 guidance on the pandemic.
The only exceptions could be employees who have genuine religious restrictions against vaccination and those with disabilities prohibiting it. In that case, employers, under human rights law, will have to attempt to provide their workers some reasonable alternative to continuing to work. It cannot be based on a personal religion but a recognized religion, the central tenets of which prohibit vaccines.
If remote work is feasible or sufficient safety can be afforded through wearing a mask or having those employees work separated from all others, then that must be permitted to those employees who have a religious or medical exemption. Not to others. But if the employee cannot be accommodated, then they cannot continue in their employment and, at the very least, would have to be laid off, if not fired.
Many legal commentators have stated that employees cannot be forced to be vaccinated. They are relying on old arbitration cases involving vaccinations for the flu, at a time when the flu vaccine was found not to be very effective little more than half the time. Covid19 vaccines have 95 per cent efficacy. Most importantly, the flu virus has not shut down our economy and exposed many to poverty. Courts will take this into consideration when determining legal actions.
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