can you be fired for not getting vaccine

Can I Be Fired for Vaccine Status in Ontario?

Since March 2020, the COVID-19 pandemic and related legislation have raised many new issues for employers and employees. Employment law continues to develop and address pandemic-related problems but has yet to address many of them formally. Despite the uncertainty, lawyers, judges, and legal academics rely on established law and policy objectives to directly address COVID-19 related issues. Since the COVID-19 vaccines were in development, employees were anxious about what refusing a vaccine could mean for their employment. When the vaccines became available and employers implemented workplace vaccine policies, employees were increasingly disciplined and terminated from their positions. This left many current employees wondering, can I be fired for vaccine status in Ontario?

Contrary to widespread belief and information circulated on social media, whether an employer can legally terminate an employee based on their vaccination status is not absolute. Like many issues and questions of law, the answer to that question depends on the circumstances. Described below are different fact scenarios where an employee may be terminated for their vaccine status and their legal entitlements. 

Termination Without Cause – Fired for Vaccine Status

Employers may legally terminate their employees without cause, for any reason, so long as the employee is provided reasonable notice or pay in lieu of notice for that termination. When terminating without cause, the employer is not legally obligated to present their reasons for the termination to the employee. Where an employer fails to provide a terminated employee sufficient notice or pay in lieu,  the employee may have a legal claim for wrongful dismissal. 

While an employer may not explicitly state an employee is fired for vaccine status as the reason they are being terminated, an employee could conclude given the surrounding facts. However, if an employer provides the sufficient employee notice or pay in lieu, the fact the termination was about their unvaccinated status may not in itself render the dismissal wrongful. 

If an employer terminates an employee for any reason in deceptive, disrespectful or otherwise in bad faith, the employee may be entitled to damages in addition to their severance entitlements. An employee fired for vaccine status is owed the same dignity and respect as any other employee facing termination. 

Termination With Cause – Fired for Vaccination Status

Where an employee has breached or irreversibly eroded the trust in the employment relationship such that it cannot continue, their employer may terminate them for cause. Upon termination for cause, an employee would only be entitled to their minimum statutory entitlements under the Ontario Employment Standards Act, 2000. In some cases, the employee’s misconduct may be deemed severe enough to disentitle them to minimum statutory termination and severance pay. 

Employers must demonstrate that the employee’s misconduct or pattern meets the high threshold required to allege cause for an employee’s termination successfully. Where an employer alleges cause when it knew or ought to have known it did not have cause for an employee’s termination, the employee may be entitled to damages in addition to the severance they are owed. 

Many employers implemented workplace vaccination policies and terminated employees for cause for either not disclosing their vaccination status or being unvaccinated pursuant. It is highly uncertain whether Ontario Courts would uphold an allegation of cause exclusively because of an employee’s non-vaccinated status. However, every analysis of just cause is significantly fact-specific, and it is possible an employee’s non-vaccinated status could warrant their termination for cause.

Are There Human Rights Issues?

Under the Ontario Human Rights Code, employees are entitled to a workplace free from harassment, sexual harassment, and discrimination. Employers are obligated to accommodate an employee’s Human Rights needs to the point of undue hardship under the Code.  Failure to accommodate an employee’s disclosed accommodation is a form of discrimination. 

Where a non-vaccinated employee has sufficiently disclosed a health or religious reason for not being vaccinated and provided their employer with the appropriate documentation, the employer must accommodate the employee’s non-vaccinated status to the point of undue hardship. If an employer then subjects this non-vaccinated employee to mistreatment, punishment, termination or other adverse treatment for their non-vaccinated status, the employee may have a Human Rights claim against their employer for lost wages, general damages and other relief. 

Employees are not legally obligated to disclose significant medical information to their employer to be entitled to accommodation for a disability. As such, a medical exemption from a medical practitioner should be sufficient in most cases to exempt the employee from being vaccinated. Regardless, the employer’s obligation to accommodate can only be engaged if the employee produces enough medical documentation justifying their accommodation needs.

Similarly, employers will typically be justified in denying accommodations for religious beliefs unless an employee produces documentation signed or otherwise confirmed by a religious authority. The protection of religious beliefs enumerated under the Code does not apply to personal choices and philosophies. 

When Should I Consult an Employment Lawyer?

There is no wrong time for an employee or employer to seek the advice of an employment lawyer to determine their legal entitlements or clarify their obligations, even outside getting fired for vaccine status. However, employees should quickly consult an employment lawyer when terminated before signing any documents produced by their employer. 

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Contact Achkar Law

Whether you are an employer or an employee looking for assistance with vaccine policies, workplace issues, or termination of employment, 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.