May 3, 2021
by Ljubica Durlovska BA, LLB, CDPM
With oral health care workers now being prioritized for COVID-19 vaccines, mandatory vaccination is on everyone’s mind. The decision to mandate COVID-19 vaccination requires careful consideration and balancing of rights and responsibilities. You must keep these things in mind:
Under provincial health and safety legislation, all employers have a legal duty to take every precaution reasonable in the circumstances to protect their workers from hazards, including COVID-19. Failure to do so may result in company and/or personal liability of the dentist. Whereas most personal injury claims can be dealt with through WSIB, dentists are not legally required to opt-in, so any legal claims will fall on the shoulders of the dentist.
Vaccination is an elective medical procedure and, ultimately, a personal choice. Mandating vaccination would infringe on human and privacy rights, so employers must ensure good reason for doing so. Failure to prove “good reason” can result in employees who disagree with the policy quitting and claiming constructive dismissal (a form of wrongful termination), triggering the employee’s rights to possible termination pay, severance pay or continuation of benefits and bonuses, which can be a costly affair.
The RCDSO has stated that they will not make COVID-19 vaccination mandatory unless required to do so. The reasoning: there is currently no evidence to suggest a heightened risk of patients contracting COVID-19 at the dental office, provided the office is adhering to the additional protective protocols put in place at start of the pandemic. Nonetheless, the RCDSO has indicated that it is up to each practice owner to decide whether they will make COVID-19 vaccination mandatory in their office.
Helpful case law
At present, there are no comparable legal cases we can look at to mandate COVID-19 vaccines. However, one recent arbitral decision on mandatory COVID-19 testing is worth reviewing: Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada. In this case, the nursing home instituted a policy that every worker must be tested by nasal swab every 2 weeks regardless of symptoms. The union grieved the policy as being unreasonable for intruding on the privacy and dignity of the workers. Furthermore, the home adapted all other mitigation strategies recommended by the government, and employees cooperated, resulting in no cases at the home.
The arbitrator dismissed the grievance and upheld the mandatory testing policy stating that COVID-19 is a potentially deadly disease, especially for the elderly, and the breach of privacy and intrusion can be justified as being reasonable even though there were no cases in the home.
The Bottom Line
If you are considering a mandatory vaccination policy, ask yourself if it would be reasonable to do so, having regard to the nature of your practice and the need for the policy (i.e. whether a less invasive approach could achieve the same goal) weighed against the competing rights of employees, patients and yourself/your business.
About the Author
Ljubica Durlovska, BA, LLB, CDPM, is a lawyer at DMC LLP focusing exclusively on helping dentists with their employment and HR matters. Ljubica can be reached at email@example.com or 416-443-9280 x206. DMC LLP is Canada’s largest dental-only law firm. Find out more at www.dentistlawyers.ca
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