Ask the ExpertVaccination policy refusal grounds_ Manitoba
Lena Fritzsching asked 8 months ago

Hello,   I am a Manitoba employer who is enforcing a COVID-19 vaccination policy on employees. One of our employees is refusing to provide vaccination status and does not want any any accomodation due to the following section on the Manitoba Public Health Act:  No treatment or immunization if person objects 97 Despite any other provision of this Act, no person is required to comply with an order made under this Act requiring him or her to receive treatment or be immunized, if the person objects to the treatment or immunization. Are there any current Public Health Acts that override this clause? My understanding is that Public Health is requesting people to get vaccinated. Please advise if you have any information that could contest this statement so we can get the employee to disclose their vaccination status. .  

2 Answers
Glenn Demby Staff answered 8 months ago

Yes. The employee is off base. As in all provinces, private sector employers in Manitoba may implement mandatory vaccination policies for their employees. Think of it this way:

  1. The Public Health Act relates to the residents of Manitoba and recommends but doesn’t require employees to be vaccinated;
  2. However, residents are also subject to the legitimate employment requirements established by their employers;
  3. Employers’ HR policies must comply with applicable provincial and federal laws–in this case, the applicable law is the human rights act (note: Implementation of mandatory vaxx for employees doesn’t violate the Public Health Act)
  4. To comply with human rights laws, the employer must make reasonable accommodations for those who can’t get vaccinated due to disability, religion or other protected grounds
  5. The employee must comply with your policy unless he/she can show you that he/she’s entitled to accommodations
  6. A decision not to get vaccinated by a person who can get vaccinated is NOT protected grounds. Direct quote from the Manitoba Human Rights Commission: “It is the Commission’s position that a person who chooses not to be vaccinated as a matter of personal preference – especially where that choice is based on misinformation or misunderstandings of scientific information – does not have grounds for a human rights complaint under The Code against an organization that is implementing mandatory vaccination policy. In other words, personal choice or preference is not a protected characteristic under The Code, and it cannot be justifiably argued that a person was discriminated against because of a choice or preference to not be vaccinated.” The employee must comply with your policy unless he/she can show you that he/she’s entitled to accommodations

Does that answer your question? 

Lena Fritzsching replied 8 months ago

It definitely gives more light. In this case, the employee is declining to provide vaccination status and is not requesting nor wanting any accommodation. Employee is simply denying to provide vaccination status. So there is a 50/50 chance that employee may or may not comply with our policy. It is just that employee refuses to disclose vaccination status. Based on your responses, we are still protected and can apply disciplinary actions if the employee does not comply with our policy then, correct?

Glenn Demby Staff answered 8 months ago

Correct. Just as long as you can show your policy is a necessary safety measure for YOUR workplace, based on a hazard assessment and that you ask for no more medical info than you need to verify vaccination status. There’s a pretty good piece in HRI on verifying vaccination status.