With mandatory COVID-19 vaccine policies rolling out in many workplaces across Ontario, managing employees who choose not to get vaccinated can become a difficult task. While some employees cannot get vaccinated for a medical reason, others may choose not to get vaccinated for personal reasons. Considering that employers and HR professionals can fire employees for any reason, (so long as it isn’t against Ontario’s Human Rights Code) the question becomes — can employees be fired for not getting vaccinated?
Mandatory vaccines in the workplace and the Ontario Human Rights Code
With employers in Ontario carrying an obligation to provide a safe working environment in their workplace under the Occupational Health and Safety Act, this includes ensuring that steps are being taken to provide this safe working environment. Employers who choose to implement a mandatory vaccine policy in the workplace should be cautious to ensure that they aren’t contravening Ontario’s Human Rights Code (“Code”).
For those employees who cannot get vaccinated due to a medical reason, such a policy could be discriminating against the employee on the status of disability, which is one of the protected grounds under the Code. When implementing any mandatory vaccine policy, employers should ensure they are accommodating those who are not able to get the vaccine for medical reasons.
Could being fired for not getting vaccinated be considered a wrongful dismissal?
In Ontario, employers have the ability to fire their employees with a reason, or for no reason at all. If an employee is dismissed due to not getting vaccinated, the employer is obligated to provide the employee with the appropriate amount of reasonable notice or pay in lieu. Should the employer choose not to, they can be liable for much higher damages, and may be ordered to pay the employee common law reasonable notice of termination, which is typically significantly more.
If an employee who is protected by the Code is fired for not getting vaccinated, and receives the appropriate amount of termination pay, the employer can still be found liable for contravening the Code. If the decision to fire the employee resulted from the fact that they couldn’t get vaccinated because of a medical reason, they would be protected by the code and the conduct would likely be considered to be discriminatory.
Employers and HR professionals should be cautious when implementing blanket policies, which may discriminate against certain employees within their workplace. Doing so runs the risk of liability and facing heavy damages before the Ontario Courts, or the Ontario Human Rights Tribunal. When in doubt, employers and HR professionals should seek the advice of an experienced employment and labour lawyer, who can assist in navigating this novel and difficult topic.
Blogging for Achkar law is Christopher Achkar, founder and principal of Achkar Law. Since being called to the bar in 2016, Christopher works with employers regarding all their HR Law needs at multiple levels of court, including tribunals such as the Human Rights Tribunal of Ontario, the Canadian Human Rights Commission, the Ontario Labour Relations Board, and the Workplace Safety and Insurance Board.
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