Can My Employer Discriminate Against Me on the Basis of “Vaccination”?
Among many other things the COVID-19 pandemic has brought about, a current hot-button topic in Ontario employment law is whether an employer can legally force an employee to get a vaccine. In other words, is it legal for an employer to penalize an employee for refusing to get a COVID-19 vaccine, such as by preventing them from physically attending at the office, or even terminate their employment?
As previously discussed in this article, there is simply no clear-cut answer to this question, and that is because the COVID-19 pandemic is so unprecedented that it has literally caused a clash between various areas of the law. For instance, for an employment lawyer asked to assist employees or employers on workplace issues involving the COVID-19 pandemic, any proper discussion must begin with consideration of (and expertise on) various legal rules and principles found under the following areas of law:
1. Employment Law
2. Human Rights Law
3. Health and Safety Law
- Ontario Occupational Health and Safety Act
- Canada Labour Code
Federal vs. Private Sector Employers
Public Sector
It seems nearly day, we hear more and more about certain employers passing rules requiring employees to either vaccinate or get weekly tests. For instance, the Canadian Government (the country’s largest employer) recently announced that will require all of its employees in the public sector will have to either vaccinate by the end of September 2021, or else undergo weekly COVID-19 testing. This rule will apply to nearly 300,000 employees who work in federal public service (e.g., all federal government departments and Crown corporations). However, the government also announced that it expects its rule to also apply to the following industries regulated by federal law (including the Canada Labour Code and Canadian Human Rights Act).
– By no later than the end of October 2021:
- all employees in the federally regulated air, rail and marine sectors
- passengers on commercial airlines (e.g., Air Canada, WestJet), inter-provincial trains (e.g., VIA Rail) and cruise ships
– all federally regulated industries, including:
- banks
- radio and television broadcasting (e.g., CBC and CTV networks)
- port services, tunnels, canals and bridges
- road transportation services, including trucks and buses, that cross provincial or international borders;
- telecommunications, such as telephone, internet, telegraph and cable systems (e.g., Rogers, Bell and Telus)
- First Nations band councils (including certain community services on reserve)
- any business that is vital, essential or integral to the operation of one of the above activities
However, as discussed below, any rule requiring vaccination must be flexible and have necessary exemptions. Therefore, the Government will consider and address exemptions to vaccination for employees based on accommodation.
Private Sector Employers
The Canadian Government also implored “all organizations beyond the federally regulated sector to put in place their own vaccination strategies.” In doing so, it is encouraging all employers in the private sector to follow its lead in developing their own approach to vaccination requirements.
However, when it comes to private sector employers (which make up the majority of employers), employment law is set by each province, including those found in the Ontario Employment Standards Act, 2000 and Human Rights Code, each province has its own law. Unlike the Canadian government, the Ontario Government has not imposed a mandatory vaccination for public sector employees who work for the provincial government, nor has it encouraged private sector employers to require vaccination.
Can my employer require me to take a COVID-19 vaccination?
Employers Have a Duty to Ensure Workplace Health and Safety, but Must Always Respect Human Rights Law
Generally, employers in Ontario are required by the Occupational Health and Safety Act take necessary precautions to ensure a workplace is safe for all employees. So, when it comes to COVID-19, this naturally included implementing social distancing, hand sanitizers and providing personal protective equipment, such as masks.
When it comes to taking more aggressive precautionary measures, there are conflicting points of view on whether an employer can legally require employees to vaccinate. However, the reality is that most employers will simply be able to encourage vaccination with policies that focus on incentivizing employees, such with bonus pay or “vaccine lotteries” (although, again, employers must ensure that these incentives do not result in discrimination against employees who cannot vaccinate for legitimate reasons).
In certain cases, employers may be able to require employees to vaccinate in safety-sensitive occupations, so long as they can prove it is necessary for a legitimate occupational requirement (e.g., healthcare and nursing home operators). Even then, the difficulty will be for employers to ensure they are still adhering to human rights law, which protects employees from discrimination (discussed below).
Human Rights
Some employers in the non-unionized sector have decided to impose workplace vaccination policies making it clear that employees who refuse to vaccinate will face discipline, including termination of employment. In those cases, employers face a real risk of various claims by employees, including:
In the event an employee refuses to get a COVID-19 vaccine and violates a vaccination policy, can an employer fire them with “just cause” for termination?
Under Ontario employment law, if an employer can prove an employee committed a misconduct that amounts to “just cause,” it may dismiss the employee “on the spot” – without prior notice of termination, or severance pay. However, to determine if an employee’s conduct amounts to “just cause,” the main question will be “whether the employee’s misconduct was sufficiently serious that it strikes at the heart the employment relationship.” The decisions are highly fact-specific and depend on the specific circumstances of each case.
At this time, it is unlikely that Ontario courts will find that an employee’s refusal to comply with an employer’s vaccination policy will amount to “just cause” (although that could very well change as the law evolves in real time in response to the COVID-19 pandemic).
So, in summary: since the Ontario Employment Standards Act, 2000 sets a high standard to prove termination with cause, employers would be hard-pressed to prove that an employee’s refusal to vaccinate amounts to “wilful misconduct, disobedience or wilful neglect of duty” to justify not providing an employee with notice of termination or severance pay. Similarly, although an employer could choose to terminate employment “without cause,” it would likely give rise to a legitimate claim by an employee that the termination was discriminatory and in reprisal for their decision to exercise their right to freedom of religion or receive accommodation for a disability (health condition).
An employee may be able to justify refusing to get a vaccination (or even to provide proof of vaccination) for legitimate reasons protected by the Human Rights Code, including a disability and/or religion. This means that Ontario employers have a legal duty to accommodate employees who may not be able to get a COVID-19 vaccine for valid reasons, including religious or medical exemptions, but not if doing so would amount to undue hardship (e.g., significant financial costs or health and safety risks).
Any time an employee requests exemption from a vaccination policy, employers will be required to assess all of the underlying circumstances to determine what alternative solutions exist for employees who cannot get vaccinated due to Human Rights Code-protected grounds. Otherwise, if an employee is successful a wrongful dismissal lawsuit, an employer failing to prove they have accommodated an employee to the point of undue hardship may have to pay additional compensation, including human rights damages.
Therefore, employers will have to maintain a delicate balance between two equal and competing interests. However, it is likely that (in most cases) an employer’s obligation to protect employees’ human rights (freedom from discrimination due to disability or religious beliefs), privacy and dignity would overtake its obligation to protect workplace health and safety.
Call Today for Help
If you are an employer or employee, please contact Bune Law at 647-822-5492 arrange a consultation with an employment lawyer in the Toronto area, so that we can discuss your specific employment matter in detail, explain employment law as it applies to your situation, and then determine whether you need our assistance and how we can help.
If you have been fired from your job and feel you deserve fair compensation, call Bune Law for help. When you call, you will speak with an experienced employment lawyer assisting with severance package review and negotiation. Call today to learn about your legal rights.
Disclaimer: The content on this website and blog is not legal advice or legal opinion of any kind, and is only to provide general information. It is in no way particular to your individual case and should not be relied upon in any way. The outcome of a legal matter depends on its unique circumstances, and prior successes are not indicative of future results. No portion or use of this website or blog will establish a lawyer-client relationship with the author, this law firm or any related party. Should you require legal advice for your particular situation, please fill out the form below, or call 647-822-5492, to request an initial consultation.