With the law unclear, businesses face tricky questions about mandating vaccines

As businesses in Ottawa reopen, employers are facing the question of whether to mandate vaccines for their employees — and the law doesn't yet provide a clear answer.

In Ontario, COVID-19 vaccines aren't mandatory but are heavily suggested. Currently in Ottawa, more than 80 per cent of residents have had at least one dose.

"It's not something that we mandated," said Henry Assad, owner of the Happy Goat Coffee Company, a chain of coffee shops in the nation's capital.

Assad said he does ask employees to tell him when they've received their shot, and that they've all indicated they've had at least one. 

"We follow the health authorities' recommendations … they have not made it mandatory for everybody to get vaccinated," Assad said.

Mandatory workplace vaccinations have become a hot topic after a nationwide fitness chain announced last week it would not require proof of vaccination from its employees.

That announcement by GoodLife Fitness led to backlash on Twitter, with several patrons saying they'd be giving up their memberships.

At West End Kids, a children's clothing store in Ottawa, owner Sheba Schmidt said she has made vaccinations mandatory for staff.

Schmidt said she's now trying to figure out if it's legal to also require would-be employees to be vaccinated before they're hired.

"I don't think my staff that I currently have will be accepting of someone working that is not vaccinated," said Schmidt, noting her decision to mandate immunizations came down to safeguarding people's health.

"I am a retail business that services the public ... it was for their safety."

Laws not clear

Assad and Schmidt aren't alone in having to make a decision one way or the other.

Michelle Groulx, executive director of the Ottawa Coalition of Business Improvement Areas, says groups like hers have been overrun with questions about requiring vaccinations.

"The response that we give to them is please talk to an employment lawyer." said Groulx.

The problem, however, is that there hasn't been a legal case put forward yet to set a precedent, said Ottawa employment lawyer Paul Champ.

"We do have some guidance from case law from about 20 years ago with SARS," said Champ. "And in those cases, labour arbitrators held that an employer cannot mandate vaccines."

The question now, he said, is if COVID-19 would be seen as a bigger threat than SARS. Courts would also likely have to look at the particular circumstances of any given workplace, he added.

Champ said he expects cases will come forward, and employers could make arguments that vaccines are necessary for both reasons of occupational health and safety and productivity — for instance, if an employee had to travel somewhere where being vaccinated was a condition for entry.

On the other hand, workers could make arguments against mandatory vaccination based on privacy and other rights — especially if there is no medical reason for refusing a vaccine. 

"I think any employer could set that policy," Champ said. "But they should do so knowing that there's a reasonable chance they'll be legally challenged."