Can Employers Require Employees to Get a COVID-19 Vaccine?
In the last few weeks, several pharmaceutical companies have announced encouraging rates of effectiveness in various types of COVID-19 vaccines. Naturally, the world remains hopeful and, at the same time, expects to receive an approved vaccine over the next few months. While availability might initially be in short supply, Canada has announced its plans to have most Canadians vaccinated within the next year.
So while the roll-out of COVID-19 vaccines is likely to take several months, both employees and employers are already questioning whether an employer can require employees to vaccinate. Specifically, many employees are wondering: “Can my employer fire me if I refuse to get the COVID-19 vaccine?”
Under Ontario employment law in the non-unionized context, the general answer will be “No” – with a few notable asterisks.
An employer can only terminate an employee’s job for “just cause” (i.e., a legally justifiable reason). This is a high standard that requires an employer to prove the employee engaged in serious misconduct that destroyed the basis (trust) of the employment relationship. This is usually difficult to prove, as it means the employee is deprived of prior notice of termination or a financial severance package. A few examples of termination for cause include:
- Dishonesty
- Theft or fraud
- Workplace Harassment
- Neglect of duties
- Insubordination and insolence
- Poor performance/Incompetence
However, even if an employer does not have “just cause” for immediate termination, it can still terminate employment “without cause” for any reason (or even no reason at all). In this case, the employer must provide the employee with at least the minimum amounts of termination pay, benefits continuance and severance pay required under the Ontario Employment Standards Act, 2000.
That means employers have wide latitude in reasons they can use to terminate an employee’s job “without cause” – with the important exceptions being an employer cannot terminate an employee’s job due to a discriminatory reason or reprisal (unlawful retaliation). As a result, it means that employers cannot directly (or even indirectly) terminate an employee’s job because they refuse to get the Covid-19 vaccine. If they do, the employer could face claims of wrongful dismissal, unlawful reprisal or even discrimination.
Workplace Health and Safety
An important obligation all employers have is to protect employee health and safety in the workplace, which is set out in the Ontario Occupational Health and Safety Act. This legislation ensure that all employees have a legal right to refuse work that they believe is unsafe; the right to be trained on dealing with workplace hazards; and the right to help identify and resolve workplace health and safety concerns. Further, an employee cannot be disciplined in any way for inquiring about their rights, or refusing unsafe work.
At the same time, it also establishes significant responsibilities on employers to make sure they protect their employee’s health and safety at work. That means employers have wide latitude in the restrictions and requirements they can place around employment. For instance, employers can implement non-discriminatory physical health requirements. So, the long-winded answer to whether employers can require that employees get a COVID-19 vaccination? No – with a few caveats.
Human Rights and Workplace Accommodations
Inasmuch as the government likely cannot mandate its citizens to take the COVID-19 vaccine due to constitutional protections enshrined in the Canadian Charter of Rights and Freedoms (e.g., right to liberty and security of the person or the right to freedom of expression), employers too likely cannot force employees to vaccinate because of the invasive nature of forcing a person to inject a pharmaceutical drug in their own body. This is because employers must comply with employment law, in addition to the human rights law. For instance, under Ontario’s Human Rights Code or Canadian Human Rights Act, an employer’s policies or practices cannot force employees to take a COVID-19 vaccine, unless it provides for exemptions for human rights reasons, such as the employee’s religion or disability (medical reasons).
However, as long as employers ensure their policies or practices do not negatively effect some employees compared to others, they may be able to able to justify certain workplace rules, such as requiring employees to wear masks or maintain social distancing at work – particularly since these are legal requirements and guidelines pushed forth by governments themselves.
Employees with legitimate medical issues or concerns must be provided with “workplace accommodation” under human rights law, such as from any employer rule or policy requiring vaccination. Typically, employees will need to notify the employer of a medical reason that requires accommodation, as well as a doctor’s note that identify the nature of the disability (but the specific health condition), so that an employer can put in place reasonable accommodation measures (e.g., permission to work remotely from home instead of going to the physical workspace).
Therefore, employers may try to pass policies encouraging employee vaccinations as part of an employer’s physical health requirements, but the policy must be applied in a non-discriminatory manner, must make room for exceptions and accommodations based on religious or medical reasons and, just as importantly, should not force employees to vaccinate or facing termination.
One must keep in mind, however, that under human rights law, employers may be able to justify attempts to a certain workplace policy or practice as “Bona Fide Occupational Requirement” (“BFOR“). This definition is subject to interpretation by the courts, but is a legal defence by employers to a discrimination complaint if they can prove that the workplace rule:
- was adopted for a purpose that is rationally connected to job performance;
- was adopted in an honest and good faith belief that the standard is necessary for the fulfillment of that legitimate purpose; and
- is reasonably necessary to accomplish that legitimate purpose.
This generally requires the employer to demonstrate it is impossible to accommodate the employee without the employer suffering “undue hardship”. Although unlikely to succeed in the context of the Covid-19 vaccine, the BFOR rule typically allows employers in some cases to institute more extensive medical controls in the workplace than would otherwise be allowed. As a result, a disability that might normally be accommodated under human rights law might not be exempted from workplace regulations. However, employers must always weigh the accommodation needs of an employee against the safety necessities of the workplace and do so in a reasonable manner, particularly in the context of COVID-19, where the potential risks/side-effects will likely remain unknown for some time.
Employers should therefore remain cautious about implementing any hard-and-fast workplace policies dealing with Covid-19, without fully understanding the risks and consequences. Similarly, and employees should speak with an employment lawyer to fully understand what their legal rights and obligations in the workplace in cooperating with an employer’s honest effort to combat Covid-19 and keep employees safe at work.
What is a “Severance Package”?
What if an employee’s job is terminated without cause? What do they keep in mind?
If an employee’s job is terminated without cause, an employer must often provide them with a financial severance package. A severance package is an offer of payment to an employee consisting of money and benefits (severance pay) as a result of the termination of their employment. The amount of severance pay and benefits in a severance package is usually determined under common law by taking into account an employee’s age, years of service, position and the availability of similar employment (unless an employee agrees to a fixed payment established by an enforceable termination clause in their employment contract).
Before an employee agrees to a severance package, it is important to review it with an employment lawyer to ensure they receive all of their entitlements, including salary, benefits, vacation, bonus pay, pension and so on.
Contact Employment Lawyer
Employers and employees should be mindful that the law around which responses by employers to dealing with Covid-19 are appropriate is continually developing, based on science that itself continues to evolve. As a result, there are no clear-cut answers to current questions, which will undoubtedly change as we progress through this pandemic with new scientific and legal guidance as the facts on the ground change.
No matter which side you happen to be on – an employee recently being forced to take a Covid-19 vaccine or risk termination of your employment, or an employer unsure how to implement health and safety policies at work to tackle Covid-19 in the workplace – feel free to reach out to Bune Law at 647-822-5492 for guidance from an experienced employment lawyer.
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