Canadian businesses have been grappling with the fundamental question of whether to implement a vaccine mandate in their workplaces. However, the legal landscape is still evolving and companies must factor in a range of key considerations when making their decision. To provide clarity for businesses, on October 14, 2021, McCarthy Tétrault virtually hosted VAX-Law: A Policy Symposium on COVID-19 Vaccine Mandates in the Private Sector.

Awi Sinha, Co-Lead of McCarthy Tétrault’s Public Sector Group, hosted the session. Subject matter experts from McCarthy Tetrault Kate McNeil-Keller (Labour & Employment Law) and Byron Shaw (Constitutional Litigation) gave an update on the legal landscape of vaccine mandates in Canada and the signals from early caselaw.

David Herle and Alex Swann of the from polling powerhouse Gandalf Group offered insights from fresh public polling into attitudes regarding workplace and patron mandates. And Awi led a frank discussion on real-time vaccine policy decisions in the business community, with Nick Eaves, Chief Venues & Operations Officer, Maple Leaf Sports and Entertainment; Roselle Martino, Vice President, Public Policy, Toronto Region Board of Trade, and Norm Sabapathy, Executive Vice President, People, Cadillac-Fairview. The symposium provided insight into the corporate community’s responses to COVID-19 vaccine mandates. This blog highlights key takeaways from the discussion.

Early Litigation Shows Support for Mandatory Vaccines.

While the law around mandatory vaccines is still in its infancy, early signs from tribunals, court decisions, and international guidelines indicate that in balancing safety with individual concerns, the safety vaccine mandates provide generally takes priority. Recently, the BC Human Rights Tribunal preliminarily dismissed a vaccine complaint because the complainant did not demonstrate the provincial mask requirement affected his asthma and therefore resulted in a loss of service (Complainant v. Dr. Bonnie Henry, 2021 BCHRT 119). The Tribunal went on to say that distrust of the vaccine is not enough to exempt someone from following provincial health orders or rules. Similarly in Ontario, the Human Rights Commission released a Statement that it is “generally permissible” to mandate and require proof of vaccine to protect people in the workplace or those who are receiving services, subject to any reasonable accommodation necessary for people who are protected under Human Rights (Code) grounds.

Businesses and leaders can take note that emerging legal decisions point to courts and tribunals favouring policies—such as vaccine mandates—that aim to protect the health and safety of workers. Thus far, only very narrow exceptions to mandatory vaccine policies, including specific medical conditions and discrimination on the basis of religion or creed, have been identified.

Businesses are Leaders in Setting the Tone for Vaccine Mandates.

To determine what direction to take with respect to mandatory vaccines and other policies—including mandatory masking and social distancing—businesses are generally taking an approach that goes beyond provincially- or federally-regulated laws. Many are implementing, or have implemented, mandatory vaccine policies in an effort to emphasize safety and minimize the risk of COIVD-19 transmission in the workplace. Norm Sabapthay and panelists shared examples of grappling with the diverse needs of different stakeholders, from employees, to tenants, to contractors, to the general public, in order to consider legal and safety risks for multiple stakeholders. This multi-layered balancing of risk and safety ultimately made businesses return to fundamentals by considering their purpose and operating model to decide what stand to take to weigh safety concerns with individual objections to vaccines.

Building Confidence for Employees is Key in the Context of Constantly Changing Regulations.

While 51% of people polled supported an employer’s right to impose a vaccine mandate, 18% strongly opposed this right. As such, business leaders must be aware of how the confusion and fear surrounding the vaccine can affect employees. Roselle Martino noted that as rules and regulations continue to change and vary from one workplace and business setting to another, consistency is important for employees to help them navigate an inconsistent patchwork of rules and regulations.

The panel highlighted the value of clearly communicating with employees so they can understand the connection between the policy and preserving their safety. David Herle added that to some people, the shifting COVID-19 rules and policies have felt arbitrary, yet people are generally supportive of strictly enforcing vaccine mandates as long as they see a connection between the mandate and public safety. It is clear that communication and transparency around the goal of the mandate are critical to trying to get buy-in.

Reputational Risk and Consumer Backlash is Greater for Companies who do too Little.

According to David Herle, the most important takeaway from the polling data is that companies that do not do enough to minimize risk to the public can face significant backlash and reputational harm. Conversely, companies with clearly articulated policies that protect safety fare much, much better in terms of public perception. This is a key point for companies that are understandably concerned about safety and the optics of putting a mandatory vaccine policy in place. The poll results are heartening to businesses that have realized the critical role vaccines play in protecting workers, the general population, and specifically, the corporate community’s role in leading the way for ensuring public protection within businesses and workplaces.

McCarthy Tétrault has been actively engaged with business and community leaders in advising on vaccination policies with respect to the workplace and places of business. Our team has wide-ranging experience in labour & employment, public, constitutional and regulatory law, and has been at the forefront of the legal and policy discussions around vaccination mandates. Our firm also advised the Ontario Chamber of Commerce on its proof-of-vaccination framework Vax-Pass Tenets. For further information on vaccine mandates or if you have questions about the impact of COVID-19 on your business, please contact your McCarthy Tétrault trusted advisor.