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Can COVID-19 vaccinations be a requirement of new recruits?

Most employers have no legal basis for requiring vaccination: expert


Alberta will start including teachers, child-care workers and support staff for vaccine priority. (insta_photos/Adobe Stock)

As vaccination programs continue their rollout across Canada, many workers are expected to get the shot in the coming months.

However, it will still be a while before the majority of the population is vaccinated. In the meantime, some employers might be wondering if they can start hiring only vaccinated workers to maintain the safety of their workplace.

Having a vaccinated workforce means a safe work environment for all, including visitors and clients, according to Puneet Tiwari, legal counsel at HR consulting firm Peninsula Canada.

This approach will raise concerns for unvaccinated workers seeking employment, particularly those who are not able to receive the vaccine, he said.

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Employer obligations and legal considerations

When a businesses is looking to hire vaccinated candidates, there are two factors at play.

“Employers have a duty to provide a safe and healthy workplace under the applicable health and safety legislation. Employers also have a duty to avoid discrimination in hiring practices. While they may mean well by wishing to hire only vaccinated candidates, this could have legal consequences for the business,” said Tiwari.

Can employers require vaccinations in the workplace?

“Since vaccination has not been made mandatory by any Canadian government, and it is unlikely that it will, most employers have no legal basis for requiring vaccination as a necessary condition of employment,” he said.

“Employers who want to make vaccination a requirement for work will have to be very careful about how they implement this policy.”

Businesses in some sectors, such as health care and personal support, may be able to justify this requirement due to the high risk of transmission of COVID-19 in their work environment.

However, in an office setting, or another setting that allows for distancing and other health and safety measures, it would be harder for employers to justify this, said Tiwari.

Risks of human rights claims

During the recruitment process, employers must be careful not to discriminate on the basis of any protected grounds under human rights legislation.

“As vaccination programs prioritize older populations, employers could be tempted to prefer older, vaccinated workers as opposed to younger unvaccinated workers in the next few months,” said Tiwari.

“Age is a protected ground under human rights legislation, so choosing to hire only older workers because of their vaccination status could result in a human rights claim.”

Further, other candidates may not be able to get the vaccine due to health reasons or religious beliefs. As disability and creed are also protected grounds, employers could face discrimination claims for these reasons as well.

Handling COVID-19 vaccine hesitancy in the workplace

The decision to only hire vaccinated workers raises the question of what will be expected of current employees.

Employers would have to consider the ramifications of requiring part of the workforce to be vaccinated and not the other.

Likewise, employers might have a hard time justifying a requirement for vaccination among existing staff and could risk human rights claims.

If businesses make the decision to require vaccination, they will have to clearly explain why this is a necessary condition of employment in their policies and allow for accommodations.

Kristina Vassilieva is an HR writer for Peninsula Canada in Toronto.