Vaccination Policies at Work: Can You be Fired for Refusing a COVID-19 Vaccine?Team
In an attempt to limit the spread of the COVID-19 virus, various workplace precautions were implemented by both governments and employers. The evolution of a remote or “hybrid” workplace is one precaution that has been generally accepted by employers and employees. However, this consensus has not emerged with regard to workplace vaccination policies.
With the recency and rapid speed of the pandemic and the implementation of safety measures, it is still too soon to gain any clear direction from the courts as to the rights of employees to refuse vaccination policies. Any claims that are made will depend on the balancing of the competing rights of individuals and the protection of the public. As such, employers should always exercise caution and seek legal advice when implementing a workplace vaccination policy or making changes to existing workplace policies.
What are workplace vaccination policies?
A workplace vaccination policy may require employees to be partially or fully vaccinated as a mandatory condition of employment. However, the application of a new vaccination requirement to existing employees may pose the risk of being construed as a fundamental change to the employment agreement. When a fundamental change to an employment agreement is made unilaterally, an employer may be liable for the constructive dismissal of an employee.
In Ontario, the Employment Standards Act, 2000 (“ESA”) provides that the resignation of an employee following a fundamental change to their employment agreement is to be treated as a termination. In such instances, the terminated employee is entitled to a written notice of termination or pay in lieu of the notice period.
Generally, employers are permitted to terminate their employees without cause; however, if they do so, they must at a minimum give the terminated employee their entitlements under the ESA. However, if an employee’s termination follows a notice of refusal to be vaccinated, then the employer may be liable for a human rights violation. How so?
Could a workplace vaccination policy be in violation of human rights?
The requirement to be vaccinated before returning to work has the potential to contravene the Ontario Human Rights Code (“Code”). The Code prohibits the discrimination of employees on the basis of certain protected grounds. Disability is one of the grounds that are protected from discrimination by the Code.
Certain employees may be unable to receive a vaccination due to a health condition or a disability. In such instances, once an employer has been given notice of this disability, they have a duty to accommodate their employee. However, this duty only extends to the point of undue hardship. If the refusal to be vaccinated results in undue hardship for the employer, then the infringement of human rights will be justified. Furthermore, the requirement to be vaccinated may also be justified as a bona fide occupational requirement.
Again- we caution that Canadian courts and human rights tribunals have yet to weigh in conclusively on the issue of vaccination mandates in the workplace, so we advise caution in taking any steps in this regard.
Are certain employees required by legislation to be vaccinated?
Certain employees may be required expressly by legislation to be vaccinated if they fall in one of the following specialized occupations:
- Child Care Centre and Early Child Education employees
- Long-Term Care Home Employees
While staying up to date on vaccinations is an occupational requirement for these employees, exemptions may still be available for claims made on certain human rights grounds. Such claims are usually limited to medical reasons or claims based on religion or conscience.
Whether a vaccination policy at work is enforceable will depend on the competing rights that are engaged. While some occupations may already require vaccines through specialized legislation, this does not preclude any exemptions made on human rights grounds.
The recency of the COVID-19 pandemic means that there is a lack of precedents to assess the strength of any claims. It is always prudent to seek out legal advice prior to making such claims.
If you have any questions about workplace vaccination policies, 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 will be happy to assist.