Can I Sue My Employer for Introducing a Vaccination Mandate
As vaccination rates increase and lockdown restrictions ease, some employers are resuming in person work in varying capacities. Generally, if employees are returning to work, they can expect, at a minimum, requirements to observe safety protocols. For example, employers in various industries have introduced vaccine mandates, requiring their employees to have 2 valid doses of the COVID to continue their employment. Additionally, employees may be asked to complete COVID-19 declaration forms before entering work, practice social distancing and wear masks in the office. Although an employer can not physically force employees to take the vaccine, employers can make the COVID-19 vaccination a condition of continued employment. A common question among employers and employees alike is whether employees can sue their employers for introducing a vaccination policy. This article aims to clarify that question.
Can I sue my employer for introducing a vaccine policy in the workplace?
In short, it depends.
If an employee refuses to be vaccinated, and as a result is placed on an unpaid leave of absence, that employee could be constructively dismissed. The employee could argue the implementation of a new vaccine mandate constitutes a significant change in the fundamental terms of their employment, which would effectively sever their employment agreement. As a result, the employee could bring a claim for constructive dismissal against their employer and seek damages.
Similarly, if an employer terminates an employee for not complying with a mandatory vaccination policy, the employee could be entitled to reasonable notice and/or severance pay pursuant to their employment contract or the common law. Again, the employee could bring a claim for wrongful dismissal against the employer and seek damages.
In the event an employee is dismissed for cause for not following their workplace vaccine policy, the employee could bring a claim for wrongful dismissal against their employer. However, this may be risky given the context of the employee’s matter. For example, although it is yet to be decided if employers can allege cause for not getting the COVID vaccine, sensitive industries such as health care workplaces may have a greater justification in alleging cause compared to other industries.
There are also a few potential exemptions under the Ontario Human Rights Code that would provide employees with grounds to seek exemption from the vaccine. These exemptions could include:
- Health reasons (ex. complications relating to disabilities, allergies to vaccine, etc.); and
- Religious reasons.
Employees can expect employers to ask for documentation relating to any vaccination exceptions. Understandably, some employees may not feel comfortable providing documentation relating to their health. It is important for employers to reasonably inquire with their employee about their exemptions. If their claims are substantiated, employers will have to make reasonable efforts in accommodating their staff and employees who are unable to vaccinate themselves, unless it creates undue hardship for them.
In the event employer denies an the vaccine exemption request, the employee could file a human rights application with the Human Rights Tribunal of Ontario against the employer.
Related Topics
Anti-Vaccination Employees vs Canadian Employers In Canada
Should Employers Update their Vaccination Policies?
COVID Sick Leave: Are Employees Eligible Without Testing?
Takeaway
It is important to note, declining to get vaccinated based on personal preferences or political beliefs are not considered valid exceptions under the Ontario Human Rights Code.
With this in mind, both employees and employers should consult an experienced employment and human rights lawyers when navigating any situation involving a COVID-19 vaccine mandate in the workplace, including introducing a vaccination policy.
Contact Us
If you are an employer who needs assistance with a constructive dismissal claim, or an employee who believes you’ve been constructively dismissed, our team of experienced employment and human rights 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.
