Can I Sue My Employer for Introducing a Vaccination Mandate
Many Ontario employers have reintroduced in‑person work with safety measures, including vaccine mandates. While no employer can physically force vaccination, they can make vaccination a condition of continued employment. But can an employee sue for a vaccine policy? In Ontario, the answer varies.
Constructive Dismissal
If an employee refuses vaccination and is placed on unpaid leave or otherwise sidelined, that may constitute constructive dismissal, because it materially changes fundamental employment terms. However, Ontario courts and tribunals typically assess whether:
- the policy was reasonable and justified, considering health, safety, and business context;
- the employee was given proper notice of the change; and
- alternatives such as accommodation were explored.
For example, in Croke v VuPoint Systems Ltd. (2024 ONCA 354) the Ontario Court of Appeal ruled that termination for non‑compliance with a third‑party vaccine mandate (Bell) led to frustration of contract, not wrongful dismissal. The employer was under no obligation to provide notice or severance.
Ontario arbitrators also tend to dismiss grievances from employees placed on unpaid leave when the mandate is objectively reasonable and imposed fairly.
Wrongful Dismissal
If terminated outright for refusing the vaccine, employees may sue for wrongful dismissal, seeking notice or severance under contract or common law. But success largely depends on whether the employer’s policy was reasonable in context.
In Croke, termination was upheld due to frustration, not wrongful dismissal. But an employer‑imposed policy not derived from a third‑party requirement could still potentially lead to a wrongful dismissal claim, depending on the specifics.
Termination for Cause
Terminating for cause (serious misconduct) for non‑vaccination is difficult. Courts weigh:
- Reasonableness of the policy;
- Employee’s compliance history and attitude; and
- Nature of the workplace (e.g. health care vs remote work).
While “just cause” dismissals may succeed in safety‑sensitive sectors (e.g. hospitals), they are far riskier elsewhere.
As Christopher Achkar, employment lawyer and founder of Achkar Law, explains:
“Vaccination mandates raise complex legal questions that affect both workplace rights and obligations. Whether you are an employee concerned about your freedoms or an employer managing compliance, speaking with a lawyer before acting is essential to protect your interests.”
Human Rights Exemptions: Creed or Disability
Employees may request exemptions under the Ontario Human Rights Code, based on disability or creed (religion). Employers must engage in meaningful accommodation unless it causes undue hardship.
In Public Health Sudbury & Districts v. Ontario Nurses’ Association (2022 CanLII 48440), an arbitrator found that denial of a religious exemption for a Catholic nurse constituted discrimination based on creed .
In contrast, the HRTO held in Oulds v Bluewater Health (2023 HRTO 1134) that personal beliefs about bodily autonomy did not meet the legal threshold of creed.
More recently, the HRTO allowed a complaint by a hospital nurse with a creed‑based claim to go forward, while dismissing disability and association grounds for lack of sufficiency. However, many other HRTO applications tied to vaccine objections were dismissed for being filed late or having insufficient grounds.
Quick Guidance Table
| Situation | Legal Claim | Ontario Cases & Outcomes |
|---|---|---|
| Placed on unpaid leave after refusal | Constructive dismissal | Policies deemed reasonable, no compensation (frustration) (Croke) |
| Direct termination for refusal | Wrongful dismissal | Case-specific; third-party mandates tend to lead to frustration |
| Fired for cause for refusing vaccination | Termination for cause | Rare outside safety-sensitive industries; depends on policy reasonableness |
| Sincere religious or medical exemption denied | Human Rights Code claim | Public Health Sudbury: doctrine accepted (credal); Oulds: personal autonomy rejected |
Key Points & Takeaways
Ontario employers can legally implement vaccine mandates; they do not automatically trigger constructive or wrongful dismissal rights under the ESA.
Constructive dismissal claims are more likely to fail if mandates are communicated, reasonable, and employees are given notice.
Wrongful dismissal suits may succeed where termination stems from an unreasonable policy or failure to accommodate.
Creed-based exemptions must meet a high threshold; they must be sincere, deeply held, integrated beliefs, not simply political or personal preferences.
Human Rights Tribunal applications must be filed within one year of the discriminatory act; many have been dismissed for delay
Conclusion
Yes, employees in Ontario can sue employers over vaccine mandates, but success depends on context, industry, communication, and whether accommodation was meaningfully considered. Vaccine refusal based on personal preference or political belief is not protected under the Human Rights Code.
Anyone facing a situation involving vaccine mandates, unpaid leave, termination, or accommodation requests should consider legal advice from labour and human rights practitioners.
Contact Achkar Law
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.
Call toll-free: 1-800-771-7882 | Email: [email protected]
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Achkar Law Professional Corporation and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Achkar Law Professional Corporation. ©