Howard Levitt: Why vaccination discrimination is perfectly legal and not a human rights violation

By September 16, 2021 No Comments

Most people believe human rights are broadly based and it’s illegal to discriminate between categories of employees. Not true

It is only illegal to discriminate based on the very few grounds prescribed in human rights legislation such as age, physical disability, gender and race.

Should you trust the legal advice you hear, see or read from legal media pundits?

As the most prolific one myself, with two weekly columns in this paper, two weekly employment law radio talk shows, and a weekly raft of other media appearances, why would I ever raise such a question?

It came to mind while recently watching television news and seeing an ’employment lawyer,’ who I had never even heard of, pontificating in my field. He was asked whether employers could mandate vaccinations and terminate employees for their refusal to comply. His response was that it could not as it would violate human rights, privacy rights and the bodily integrity of the individual in question.

Most laypersons would assume that that advice is absolutely correct. The problem is, it is not.

Although privacy rights and arguably bodily integrity are impacted, the law is clear.

Most people believe that human rights are broadly based and that it is illegal to discriminate between employees. This again is untrue. It is only illegal to discriminate based on the very few grounds prescribed in human rights legislation such as age, physical disability, gender and race. Most human rights legislation have about 16 such grounds.

But in infinite other ways, it is entirely legal to discriminate. You could hire employees based on looks, on the colour of the suit or dress they happen to be wearing at the interview or on almost any other basis, without running afoul of human rights legislation. That may not be fair but it is entirely legal. The only two grounds on which human rights applies to prevent compulsory vaccinations are those of creed and medical disability but those two exceptions are very narrowly construed. Medical exemptions, for example, are limited to little more than true allergies to components of the vaccine and inflammation of the heart, both of which conditions are extraordinarily rare.

The lawyer on that television show went on to declare that employers cannot “punish“ employees for refusing to be vaccinated by dismissing them from their jobs. Again, that is incorrect legally. They can in cases where those employees are working in close proximity to others and medical and creed human rights accommodations do not apply.

Finally, and surprisingly in light of his earlier comments, the lawyer went on to say that an employee who does not wish to work among unvaccinated coworkers have rights. That is also false. Such an employee has no say at all and the decision to require employees to be vaccinated rests solely with the employer.

An employer has an obligation to maintain a safe workplace and some employers may do so by requiring a mandatory vaccination policy as one potential method of doing so. But that is only the decision of the employer not of any employee or employees. One advantage of mandatory vaccination is that it makes the employer impervious to potential negligence actions since they have done everything medical science suggests to have a safe workplace.

Media clips from other lawyers are often sent to me and I find major errors just as frequently. Much of the media legal commentary in my field is simply wrong and the stations are at risk of being sued for negligence as is the lawyer.

So if you cannot rely upon legal advice on the media, how do you select your lawyer?

The right lawyer has a combination of instinct, experience, knowledge, street smarts, honed cross-examinations skills, the ability to dissect pressure points in one’s opponents, mental quickness, erudition, intelligence and trial experience (without it, your opponent won’t take them seriously). Being telegenic, glib or invariably available for media calls are not among those adjectives.

Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.