“Yes, there will be fact-based distinctions under all circumstances,” he said. However, given the huge potential penalties, multiple safety laws, and the views of health officials on due diligence, it is clear that the courts will make refusal of a mandatory vaccine the reason for the discharge, Levitt said. He added that the two exceptions will be exceptions to human rights for religion and disability.
Christopher Munroe, a labor, labor and human rights attorney at Roper Greyell LLP, told Canadian Lawyer that the issue of mandatory vaccination in the workplace is “a very lively issue with very good arguments on both sides.”
“For most of us who believe in science, we’re probably not too concerned,” said Munroe, a Vancouver-based practitioner. “But basically you’re asking someone to make a fairly personal decision about their body and what to do with it, and that’s difficult because it brings with it privacy concerns. And these privacy issues are closely guarded. Especially by referees in a unionized environment. “
The problem has occurred with seasonal and annual flu shots, Munroe says. Arbitrators and courts have found the request to be inappropriate, but he adds that COVID is far more deadly and contagious than the flu. Munroe believes that a distinction between unionized and non-union environments will emerge as non-union workplaces will more easily enforce compulsory vaccination.
“But I expect that if allowed, it will only apply to a very small subset of employees working in a health facility with vulnerable populations,” he says.