Anti-Vaccination Employees vs Canadian Employers In Canada

Private employers are increasingly adopting mandatory vaccination policies to respond to the ongoing COVID-19 pandemic. These policies generally state that should anti-vaccination employees refuse to get a vaccine by a certain date, they risk termination or will be put on indefinite unpaid leave. Due to the constantly changing nature of the pandemic, employees are often left unclear on what their rights are should they experience termination or become placed on indefinite unpaid leave for failure to comply with their employer’s mandatory vaccination policy. So, what are the rights of anti-vaccination employees vs Canadian employers?

Anti-Vaccination Employees – Qualifying For An Exemption

Under section 5(1) of the Ontario Human Rights Code (the “Code“), every person has the right to equal treatment with respect to employment without discrimination based on any one of the protected grounds under the Code. To date, the only grounds excepted as legitimate that apply for a human rights exemption from mandatory vaccination policies are creed/religion and disability.

However, while creed/religion is an acceptable ground to apply for as an exemption, claims under this ground are overwhelmingly rejected. On September 22, 2021, the Ontario Human Rights Commission (“OHRC”) published a statement on COVID-19 vaccine mandates and proof of vaccination certificates. In it, the OHRC addressed whether an individual is likely to be successful in an application for an exemption from mandatory vaccination policies based on creed/religion:

Receiving a COVID-19 vaccine is voluntary. At the same time, the OHRC’s position is that anti-vaccination employees choosing not to be vaccinated based on personal preference do not have the right to accommodation under the Code. The OHRC is not aware of any tribunal or court decision that found a singular belief against vaccinations or masks amounted to a creed within the meaning of the Code.

While the Code prohibits discrimination based on creed, personal preferences or singular beliefs do not amount to a creed for the purposes of the Code.

Even if a person shows they are denied service or employment because of a creed-based belief against vaccinations, the duty to accommodate… can be limited if it would significantly compromise health and safety amounting to undue hardship – such as during a pandemic. [Emphasis added]

Anti-Vaccination Employees – Termination for Failure to Comply With Mandatory Vaccination Policy

Anti-Vaccination employees have the right to refuse to comply with their private employers’ mandatory vaccination policy. However, employers also have the right to terminate an employee without cause at any time, as long as they provide said employee with the entirety of their legal entitlements upon termination. In other words, a private employer can legally terminate anti-vaccination employees for failing to comply with their mandatory vaccination policy, as long as they are provided with all of the legal entitlements for any other without cause termination.

Indefinite Unpaid Leave

Instead of terminating employees who refuse to comply with their mandatory vaccination policy, some employers have placed these anti-vaccination employees on indefinite unpaid leave. Generally, these employers do not want to terminate their employees and hope this step convinces anti-vaccination employees to change their minds and comply with the policy.

However, this is not an acceptable legal solution. This unilateral decision would represent a significant change to an employee’s job and effectively ends the employment for all intents and purposes. Anti-vaccination employees in this situation may have a strong claim of constructive dismissal against their employers. If you find yourself in this situation, it is essential that you do not resign from your position before seeking legal advice.

Conclusion

Mandatory vaccination policies have become quite common in private workplaces as we continue to deal with the effects of a global pandemic. Both the employer and the employee need to know their rights while navigating this new normal. If you have any concerns about the legality of your actions, whether you are an employer or an employee, it is essential to seek legal advice before making any final decisions.

Contact Us

If you are an anti-vaccination employee who believes you’ve been wrongfully dismissed or an employer facing a claim for enforcing your mandatory vaccination policy, our team of experienced workplace lawyers at Achkar Law can help.

Contact us by phone toll-free at  +1 (800) 771-7882  or email us at [email protected], and we would be happy to assist.