Casual Legal: Vaccination as a Condition of Employment - A Balancing Act
By Lauren Chalaturnyk
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider
Many employers implemented mandatory COVID-19 vaccination policies in the fall and are now in the process of enforcing them. As part of that process, employers are also considering whether new employees should be required to be fully vaccinated as a condition of hiring and employment. Therefore, the question is whether an employer can make vaccination a condition of employment? The short answer is yes.
Like the mandatory vaccination policies for existing employees, employers must be mindful of balancing their health and safety obligations in the workplace with the human rights considerations in hiring practices. The Alberta Human Rights Act prohibits discrimination in all employment practices, including hiring, on the basis of a number of protected grounds. In the context of vaccinations, the primary protected grounds that are relevant are physical disability and mental disability.
When interviewing new employees, it is inappropriate to ask any questions relating to an interviewee’s medical information – including their vaccination status. As a general rule, employers should avoid asking about a potential hire’s vaccination status at the interview stage.
If an employer ultimately decides to hire a new employee, it is appropriate at the ‘offer of employment’ stage to tell the new employee that they will be required to submit proof of vaccination prior to being hired. As with the mandatory vaccination policies, though, the employer should provide for the possibility of an exemption for those potential hires who cannot get vaccinated on the basis of a protected ground (i.e. an individual who has a medical condition, diagnosed by a doctor, that prevents them from being vaccinated). If a potential hire does request an exemption, the employer is permitted to ask for additional information from that individual, such as a doctor’s note, to support the requested exemption. If the information clearly supports the exemption and it is clear vaccination is not an option for that individual, then, the employer may be required to put an accommodation in place for that employee at the time of hire, such as requiring them to submit to regular rapid testing.
Employers may ask whether they can simply choose not to hire someone who seeks and has a legitimate exemption. While possible, it does attract the risk of a human rights complaint on the basis of discriminatory hiring practices. If someone has a medical condition preventing them from being vaccinated, for example, and the employer chooses not to hire them solely on that basis, then that would likely amount to discrimination under the Alberta Human Rights Act.
Employers are permitted to require vaccination as a condition of employment, but like with any vaccination-related policy, employers must consider their human rights obligations and ensure those are adequately balanced with the employer’s control of the health and safety of their workplace.
To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or email casuallegal [at] abmunis.ca and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] abmunis.ca, or call 310-MUNI (6864) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.
DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.
