As vaccination programs expand across Canada, many workers are expected to get the shot in the coming months. However, it will still be a while before the majority of the population is vaccinated. In the meantime, can employers hire only vaccinated workers?
Some businesses that are looking to recruit may want to hire vaccinated workers with the aim of maintaining a safe workplace. Having a vaccinated workforce means a safe work environment for all, including visitors such as clients. However, this approach raises concerns for unvaccinated workers seeking employment, particularly those who are not able to receive the vaccine.
Employer obligations and legal considerations
Where an employer is looking to hire vaccinated candidates, there are two factors at play. One is the employers’ duty to provide a safe and healthy workplace under the applicable health and safety legislation. The other is the employers’ duty to avoid discrimination in hiring practices. While the employer may mean well, this could have legal consequences for the business.
Can employers require vaccinations in the workplace?
Since vaccination has not been made mandatory by any Canadian government, and it is unlikely that it will, most employers have no legal basis for requiring vaccination as a necessary condition of employment. Employers who want to make vaccination a requirement for work will have to be very careful about how they implement this policy.
Businesses in some sectors, such as healthcare and personal support, may be able to justify this requirement due to the high risk of transmission of COVID-19 in their work environment. However, in an office setting, or another setting that allows for distancing and other health and safety measures, it would be harder for employers to justify this.
Risks of human rights claims
During the recruitment process, employers must be careful not to discriminate on the basis of any protected grounds under human rights legislation. As vaccination programs prioritize older populations, employers could be tempted to prefer older, vaccinated workers as opposed to younger unvaccinated workers in the next few months. Age is a protected ground under human rights legislation, so choosing to hire older workers, even if the reason for this is their vaccination status, could result in a human rights claim.
Risks of other discrimination claims
Further, other candidates may not be able to get the vaccine due to health reasons or religious beliefs. As disability and creed are also protected grounds, employers could face discrimination claims for these reasons as well.
How hiring only vaccinated workers will affect current staff
The decision to only hire vaccinated workers also raises the question of what will be expected of current employees. Employers would have to consider the ramifications of requiring part of the workforce to be vaccinated and not the other. Likewise, employers might have a hard time justifying a requirement for vaccination among existing staff and could risk human rights claims. If businesses make the decision to require vaccination, they will have to clearly explain why this is a necessary condition of employment in their policies and allow for accommodations.
Puneet Tiwari is Legal Counsel & Legal Claims Manager at Peninsula Canada.