Can Employers Fire Unvaccinated Employees?achkarlaw-admin
In recent news, many shared spaces and workplaces implemented mandatory vaccination policies. Even local governments, like the City of Toronto, have mandated vaccination for all their employees for the stated purpose of protecting residents, staff, and the community at large. Many private companies are rumoured to be exploring mandatory vaccination policies for their workplaces as well.
Mandatory vaccination in the workplace has been an ongoing concern for both employers and employees throughout the COVID-19 pandemic. Employers want to minimize economic risks, manage their legal liability, and maintain a reasonably safe work environment. Employees are concerned with the impacts of mandatory vaccines on their health, religious beliefs and personal autonomy.
As a result of these conflicting interests, mandatory vaccination policies will almost certainly strain many employment relationships. Some employers may seek to terminate employees who do not get vaccinated and inadvertently open themselves to significant legal liability and costs.
Can Employers Fire Unvaccinated Employees Without Cause?
Employers have the option to terminate an employee without cause for not getting vaccinated. In this scenario, the employer would owe the employee their lawful severance entitlements, which may vary depending on the facts of the case. How the employer approaches the termination could potentially entitle the employee to additional damages, given the volatile controversy surrounding mandatory vaccination.
Can Employers Fire Unvaccinated Employees With Cause?
Employers also have the option to terminate an employee with cause for not getting vaccinated, depending on the facts of the circumstances. However, terminating an employee for cause requires a high threshold of misconduct from the employee, and it is not yet been decided that not getting vaccinated for an infectious disease like COVID-19 meets that threshold.
In this scenario, the employer could potentially owe the employee only their statutory minimum entitlements under the Ontario Employment Standards Act, or no severance whatsoever. Employers should be aware that there could be significant legal costs defending an allegation of cause in the employee’s termination, with further potential for damages in addition to the employee’s lawful severance entitlements.
Potential for Human Rights Damages
A documented health issue is considered a disability under the Ontario Human Rights Code (the Code) and the Canadian Human Rights Act (the Act). Both disability and religion are protected grounds under the Code and the Act for which an employer cannot discriminate against their employees. The Code and the Act therefore require employers to accommodate the employee’s relevant grounds for not getting vaccinated to the point of undue hardship.
Many people have legitimate and documented health reasons for not getting their COVID-19 vaccines. There are also some who also have religious and spiritual contentions about how specific vaccines were created and tested. As a result, firing an employee who did not get vaccinated for medical or religious reasons could lead to a discrimination claim against the employer, with the potential for significant legal expenses for the employer and damages awarded to the employee.
Issues of Personal Choice Not to Get Vaccinated
While individual freedom and autonomy are very important topics that go to the heart of our political and legal system, most employers in the private sector have no legal obligation to respect an employee’s personal decision to not vaccinate against COVID-19. Political beliefs are not a protected human rights ground under the Code or the Act, and constitutional rights entrenched in the Canadian Charter of Rights and Freedoms are limited to government action and government workplaces.
However, there is the potential circumstance where an employee does not want to provide their employer any private medical information but may still have legitimate health or religious reasons for not getting vaccinated. In this scenario, an employer may still be liable for human rights damages if they terminate the employee for not getting vaccinated without taking crucial steps to inquire.
Given the substantial risks an employer may face when deciding to terminate an unvaccinated employee, they should consult an employment and human rights lawyer to determine the best course of action.
If you are an employer who is seeking information about proper dismissals, or an employee who has been dismissed, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at1 (800)771-7882 or email us at [email protected] and we would be happy to assist.
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