Much ink has been spilled debating whether an employer can require its employees to vaccinate, as well as the consequence to the employee if they don’t. However, little has been said of the position faced by contractors regarding the mandatory vaccination policies for contractors – people who have been set up to work for a company without becoming an employee.
Before addressing the position of mandatory vaccination policies for contractors, a quick overview is in order:
- Employees and contractors are treated differently under employment standards legislation; employees are generally entitled to all of the protections under that legislation, while contractors are not.
- Employees and contractors are treated similarly under occupational health and safety legislation, where the safety requirements are focused on “workers”, whatever their legal status.
- Employees are typically entitled to a severance package when they are fired, while contractors who are truly independent of the employer company are not.
This last point requires some emphasis as we consider the impact of mandatory vaccination policies, as the line between employees and contractors can often be quite blurry. Indeed, because a person’s true role can be unclear, courts have invented a third category of work, the “dependent” contractor. Dependent contractors are technically not employees and still do not receive the protections of employment standards legislation. However, due to their dependency on the company, they may very well be entitled to a severance package when their employment/contract ends.
Whether a person is an employee, dependent contractor or independent contractor will be evaluated based on several factors, including whether the person is effectively running their own business or managing someone else’s, who provides the tools for work, how much control the employer has over the work performed by the person and how and when it is performed.
So, what does this have to do with mandatory vaccination policies for contractors? The first is to understand that from an occupational health and safety standpoint, employers will be able to use similar arguments for both employees and contractors in terms of trying to justify the policy. The second is to understand that the more control an employer exerts over a worker, the more likely it is that they will be seen as an employee or dependent contractor who is entitled to severance when the relationship ends. Taking those two things together, it means that:
- Contractors may have some of the same arguments for resisting mandatory vaccination as employees do; and
- If the employer tries to mandate vaccination for the contractor, that effort to control the contractor may well mean be worth raising by the contractor in support of a severance claim.
To better understand vaccine-related issues during these unprecedented times, we encourage employees and employers to seek legal advice. We at Whitten & Lublin are happy to provide insight and advice into your specific circumstances. If you are looking for employment lawyers and would like more information about what Whitten & Lublin can do for you, please contact us online or by phone at (416) 640-2667 today.