Brief Answer

The answer in Canada is generally yes, but with a few important caveats:

i. Mandatory vaccination policies should be consistent with the employer law firm’s obligations to ensure occupational health and safety; 

ii. Reasonable accommodations must be provided to employees in accordance with human rights legislation; and 

iii. Private information disclosed by employees must be appropriately safeguarded. 

Points to Consider

Occupational health and safety: Like other employers, law firms are subject to statutory requirements to take reasonable measures to ensure a safe and healthy workplace. Determining what measures are “reasonable” can vary on a case-by-case basis, and should generally be proportionate to the risk. Weighing the contagiousness and potential harms of COVID-19 against the availability and efficacy of vaccination as a means of mitigating this danger, mandatory vaccination is likely to constitute a reasonable health and safety measure at any workplace where employees are required to attend in-person and to interact with others.

As the work of most law firms depends at least in part on in-person collaboration, meetings with clients and physical attendance at hearings, we can expect mandatory vaccination policies will be increasingly and reasonably relied upon by law firms to ensure the safety of their employees – especially as employees come back to carrying out regular in-person work and appointments.  

Human rights: Each Canadian province and the federal jurisdiction have established human rights legislation setting out various protected grounds of discrimination, and requiring employers to engage in a process of “reasonable accommodation” based on those protected grounds. A key protected ground to consider in the context of mandatory vaccination is disability. Where an employee has a medical condition that limits their ability to safely receive the COVID-19 vaccine, employer law firms have an obligation to work with the employee to determine if a reasonable accommodation could be put into place – such as providing rapid-testing for the employee in place of a vaccination requirement. Another key protected ground could be an employee’s sincerely-held beliefs. However, the applicability of this ground may be narrow, and Ontario’s Human Rights Commission has specifically stated that it is “not aware of any tribunal or court decision that found a singular belief against vaccinations or masks amounted to a [protected belief] within the meaning of the Code.”

Privacy: Once a law firm decides to collect employees’ vaccination information, it must ensure that reasonable measures are taken to protect the privacy of this information. In Canada, both provincial and federal legislation – alongside the common law – regulates the collection, storage, and use of personal health information. Employers who collect employees’ personal health information, such as vaccination details, are generally required to obtain employees’ consent, to safeguard this information, and to reasonably limit its disclosure in accordance with the uses that the employee has consented to. Employees’ vaccination status should only be disclosed to those who need to know, and employees should be made aware of who will be receiving this information and how it will be used in order to provide their informed consent. 

Concluding Remark

While law firms can require employees to be vaccinated for COVID-19, care must be taken to ensure that any such policy satisfies the firm’s legal obligations and the legal rights of its employees. 

At the end of the day, having a policy is key for law firms who wish to mandate COVID-19 vaccination at their workplace. 

KPMG Law’s Employment and Labour Law Team is available to assist employers in preparing and administering their policies. For more information, please contact Lisa Cabel or Maciej Lipinski.