With the first doses of the COVID-19 vaccines being administered in Canada, there is much chatter amongst employers and employees alike on whether an employer can make the COVID-19 vaccine mandatory.
At present, there is generally no legal requirement for Canadian citizens to receive vaccinations, subject to some exceptions, and as such it may be difficult for employers to mandate vaccinations as a condition of an employee’s employment without provincial or federal legislation to rely on.
Accordingly, we review current workplace health and safety legislation as well as human rights in anticipation of how the COVID-19 vaccine may be managed by employers in Canada.
Vaccination as a requirement of employment
Under Ontario’s Occupational Health and Safety Act (“OHSA”), employers have an obligation to get rid of known hazards in the workplace and to protect employees from work-related illnesses or injury.
Despite this, and while the Courts have previously upheld past vaccination requirements, it is unlikely that employers will be able to enforce the requirement that an employee get vaccinated without an order from provincial or federal health authorities as a justification.
As an alternative to mandatory vaccination, employers may instead simply encourage employees to get vaccinated to decrease the spread of COVID-19 in the workplace.
Employers interested in developing vaccination related policies are strongly encouraged to reach out to legal counsel to discuss the enforceability of such policies and the remedies available should employees fail to obey.
Employee refusal to vaccinate
Where an employer has established and implemented a mandatory vaccination policy, there may be limited recourse if an employee does not abide by the policy by forgoing the vaccination.
While an employer can elect to terminate the employee’s employment for breach of the policy, doing so may not only be costly to the employer in terms of termination and severance pay, but the employer may also be found liable for claims of wrongful dismissal, resulting in additional damages.
If the employer elects to fire the employee on a “just cause” basis because of an employee’s refusal to receive the COVID-19 vaccine, it will be difficult for the employer to demonstrate that the employee acted with wilful misconduct or disobedience.
Alternatively, if an employer instead terminates the employee on a “without cause” basis, the employer also runs that the risk that they will be found liable for wrongful dismissal, particularly if it appears the termination serves as a reprisal for the employee’s refusal to vaccinate.
Employers are encouraged to work closely with their employees to be transparent about the reasons for requiring vaccination as well as the reasons for refusal. If an employer ultimately decides that an employee should be terminated for refusing to receive the vaccine, we highly recommend that they first speak with an experienced employment lawyer to discuss alternative resolutions.
Accommodations related to vaccination
If an employer successful establishes a lawful mandatory vaccination policy, human rights laws may enable some employees to legally refuse to get the vaccine. Under Ontario’s Human Rights Code (the “Code”), an employee may forgo a mandatory vaccination and request an exemption for medical or religious reasons.
Employers may be expected to accommodate employees who cannot receive the vaccine for reasons grounded in law human rights law, including by allowing the employee to continue to work from home or providing personal protective equipment. Employers are expected to accommodate employees to the point of undue hardship, meaning to the point where providing the accommodation would result in financial hardship and/or health and safety risks for the employer.
An employee may have a human rights claim if they are not successfully accommodated or alternatively, if their employment is terminated following a refusal to receive the COVID-19 vaccination.
Employers should seek the advice of legal counsel before making the determination that an employee cannot be accommodated and electing to terminate their employment as this may serve as a reprisal to the employee for asserting their rights, a. violation of their human rights and/or a wrongful dismissal.
While mandatory vaccination with respect to COVID-19 remains unclear, we encourage employers to continue to seek out and follow advice from provincial and federal public health authorities in developing related workplace policies.
For now, it is unlikely that employers will be able to impose the COVID-19 vaccination as a mandatory requirement of employment. As such, employers may wish to consider alternatives to the vaccinations that are aimed at mitigating the spread of the COVID-19 virus in the workplace.
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