Toronto employment lawyer on mandating booster shots

Booster shots have become more readily available for Canadians across the country and as a result, many employers and businesses have adopted a new vaccine mandate that includes a third shot for employees. Are employers able to implement new vaccine policies due to the infectious nature of the Omicron variant? Could employees refuse to take a booster shot if they have previously agreed to a vaccine mandate?

A Toronto employment lawyer at Samfiru Tumarkin LLP spoke with the Canadian HR Reporter’s Sarah Dobson on the complicated nature of the new variant and vaccination.

“Tons of vaccinated people are getting it and vaccinated people are transmitting it,” says the lawyer. “As new variants come out, and the efficacy of our existing vaccines tends to dwindle, there’s becoming much less of a foundational basis to argue that the mandatory vaccination is actually necessary.”

In order to update or add a booster shot to a current vaccine policy, employers will have to have a flexible policy. “I certainly hope that they included provisional language, to begin with, that allowed them to amend it because then they stand a better chance of including the requirement for booster shots at a later date,” the lawyer states. Employers who have used the term “fully vaccinated” could potentially face difficulties.

“One of those could be employee resistance: While they may be “begrudgingly complied” for the first two vaccines, they may not have the same predilection for a booster shot.”

Ultimately the employment lawyer states that vaccine policies will continue to pose problems for employers. “If you’re introducing them to existing employees, they can certainly amount to a material change to existing terms of employment. And when you do that, you start running into potential issues where, when people want to refuse it, that employer — even though they may be trying to do their part for the social greater good — may not have a legal basis to stand on.”