Mandatory Vaccinations and Worker’s Compensation: Employer Liability

In a race against the fourth wave of the Coronavirus, the government, public health units and employers have moved from encouraging vaccination to mandating it. In recent weeks, many employers have issued mandatory vaccination policies, giving rise to multiple concerns, from individual rights to rights of the collective to work in safe environments. Some are raising practical concerns, like worker’s compensation, and whether employers who mandate vaccines are liable for workers who develop severe and adverse reactions.

The question to this answer lies in worker’s compensation regimes. Across Canada, worker’s compensation jurisdictions acknowledge that in some cases COVID-19 cases are work-related, and therefore compensable. Similarly, worker’s compensation agencies acknowledge that in cases where an employer mandated a vaccine, by using some sort of coercion such as, unpaid leave of absence or termination to encourage vaccinations, employers may be liable. Workers with severe reactions, a standard defined by each worker’s compensation regime, may have their claim approved for compensation. Each jurisdiction outlines what constitutes a severe reaction, and what mandatory vaccination implies in the context of work, so it is important members understand thresholds in their province.

In Ontario, a severe reaction is defined by the Workplace Safety and Insurance Board as;

“An adverse reaction is a serious unexpected reaction to a vaccine. If the reaction requires medical treatment beyond first aid and/or requires absence from work for more than a few days. This indicates the reaction – in its severity and/or duration – has gone beyond the common mild expected reactions from immunization (fever, chills, pain at the injection site, fatigue and headaches which should resolve on their own in a few days).”

Workers should also take note of a federal program meant to support those who experience a severe reaction to any of the approved vaccines. The Vaccination Injury Support program is independent of any worker’s compensation body, and claims are processed independently. For residents in Quebec, a separate program is available, which not only applies to those with severe reactions to COVID-19 vaccines but to any other government recommended vaccine.

As the virus continues mutating, new information emerges about its contagiousness and effects. Since long-term effects of the virus are unknown, those who test positive should file a claim in their jurisdiction, even if the claim is rejected. Should COVID-19 symptoms linger, or if complications develop that make it difficult to continue working, evidence of an initial claim will be helpful when filing a second one. Time away from work due to COVID-19 may be deemed an injury, and it’s recommended that an individual applies.

Last, but not least, employers are obligated to not only report COVID-19 cases to a public health agency in their region, but to also report cases to the Ministry of Labour, if in the provincial jurisdiction, and to the Labour Program, if under the federal jurisdiction.

Knowing your rights will keep you, your co-workers and your community safe.