It is not only the Americans. With the vast majority of COVID-19 hospitalizations coming from the small minority who still remain unvaccinated, Canadians too, have lost patience with those who resist vaccination.
COVID-19 has turned into a pandemic of the unvaccinated. Medical science makes clear, according to prominent Canadian epidemiologist Dr. Isaac Bogoch, that vaccines both prevents people getting infected in the first place, thereby creating a safe indoor space by reducing the likelihood of introducing the virus and, If infected, transmitting the virus to fewer people than the unvaccinated.
For the sake of our health and our society, both government and employers are increasingly requiring workplace vaccinations to remain employed. The federal government, the City of Toronto, Colleges and Universities and most of corporate Canada are now mandating workplace vaccinations.
I am now spending a fourth of my time each day dealing with questions respecting mandatory vaccinations from employers and employees alike. One lawyer in my firm is spending almost all their time drafting corporate vaccination policies.
The only exemptions legally to being vaccinated are creed and medical disability. Both are extraordinarily limited. Creed is not a matter of personal faith as many wish to believe. For creed to apply, the employee must establish that they have been part of a religion that prohibits vaccinations as a tenet.
Almost no religions do. The employee must prove a relationship with that religion in some form, such as proof of payment of dues or a letter from the pastor.
Medical exemptions are almost as limited. Not only employers, but even the College of Physicians and Surgeons in Ontario is losing patience with doctors handing out notes claiming their patients cannot be vaccinated for medical reasons. Such exemptions are limited to little more than inflammation of the heart and true allergies to components of a vaccine — both extraordinarily rare.
Employers legally have the right to mandate vaccinations and terminate employees who refuse to comply. Providing them with an unpaid leave of absence actually bears greater risk of a constructive dismissal action. Contrary to the ludicrous claims of the anti-vaxxers, the Nuremberg convention, which deals with medical experimentation on the non-consenting, has nothing to do with this. Neither does the Charter nor human rights legislation, subject to the two narrow creed and medical disability exemptions.
A mandatory vaccination policy also protects employers from negligence claims from those entering their workplaces and contracting COVID-19. As such policies become de rigeur, courts may well determine that not having such a policy is prima facie negligent.
Employers are also able to impose greater restrictions on employees who are unvaccinated than on those who are, such as more personal protective equipment, masks at all times, frequent testing, social distancing and separate buildings or offices for the unvaccinated. Is that discriminatory? Yes. Is it illegal? No.
Apart from fatuous legal arguments, the anti-vaxxers claim that mandating workplace vaccinations as a term of employment violates civil liberties.
The American Civil Liberties Union strongly disagrees.
In fact, David Cole, its national legal director, and Daniel Mach, director of its program on freedom of religion and belief, wrote in the New York Times that, “far from compromising civil liberties, vaccine mandates furthers civil liberties, protecting the most vulnerable including people with disabilities, fragile immune systems, children too young to be vaccinated and communities of colour hit hard by the disease.”
They note that vaccines provide the possibility of actually restoring full civil liberties by returning us to the lives we had before the virus. Subject to these two limited exemptions, the protection vaccines provide from this deadly pandemic outweighs personal autonomy.
Many vaccines are provided to us as children, without objection, as a condition of entering schools. We hear few objections to that. But there is no other existent disease that has been as sadly crippling as COVID-19. The law, among other things, makes clear that we don’t have the right to inflict harm on others.
Vaccinations should be required in places where people congregate, including workplaces. They provide safeguards for the weak, the ill and the elderly and are therefore, legally, a justifiable limit on the inviolability of the person.
Got a question about employment law during COVID-19? Write to Howard at email@example.com.
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.
THIS ARTICLE ORIGINALLY APPEARED HERE: https://financialpost.com/fp-work/howard-levitt-joe-biden-is-running-out-of-patience-with-the-unvaccinated-so-is-corporate-canada?video_autoplay=true