Borden Ladner Gervais LLP

The answer may seem obvious, since governments and the media alike have promoted the vaccine as the ticket back to “normal” life (including the workplace). Employers may indeed wish to protect the health and safety of their employees by restricting access to the workplace to only fully vaccinated individuals, as it is their statutory duty in all Canadian provinces. However, Canadian employers face a complex issue; they must determine whether the obligation to protect an employee’s health and safety justifies the encroachment upon employees’ privacy and human rights protections under Canadian law. Unfortunately, the answer to this question is not obvious. Our neighbours to the South have clearly taken the approach of requiring vaccination as a condition for accessing the workplace in many instances. It may be time to question whether the rise of virus variants and the growing number of cases worldwide will drive our governments in Canada to take a similar approach. We have already seen one province implement a vaccination passport system in anticipation of a fourth wave. As such, people will be required to present their proof of vaccination via the passport system to access certain public spaces and non-essential businesses (not for work purposes). These actions are far-reaching and probably would not even have been even contemplated some three months ago. While this specific government measure does not currently require employers to impose such conditions on their employees, ultimately, there may be more significant support for this kind of proposition in the future. Employers may have to adopt similar measures to uphold and justify their obligation to provide a safe and healthy workplace.