Can an Employer’s Vaccination Policy Result in Termination of Employment?
There is an ongoing struggle in Ontario workplaces regarding how to handle the COVID-19 pandemic – can an employer force employees to take a COVID-19 vaccination as a term of their employment?
This question hinges primarily on two different obligations that an employer has under Ontario employment law:
- protecting workplace health and safety by preventing occupational injury and disease (a requirement under the Ontario Occupational Health and Safety Act); and
- complying with the Ontario Human Rights Code, a law that requires employers to treat everybody equally and without discrimination (which often has to be considered when dealing with workplace health and safety).
As employers grapple with how to balance both obligations – taking steps to protect workplace health and safety while not discriminating against employees based on human rights grounds – many have designed “mandatory vaccination policies”. These are company-wide rules that govern how an employer deals with implementing its response to protecting against COVID-19 in its workplace. In such policies, the key element is requiring employees to obtain the COVID-19 vaccine in order to remain employed (i.e., not lose their job). This became a typical requirement as the COVID-19 vaccine became readily available in Canada, which employers saw as the best way forward to returning employees to the workplace safely.
In designing such policies, employers took different approaches. While some simply encouraged employees to vaccinate by educating them about the risk and benefits, others made it mandatory with risk of being placed unpaid leave of absence or even termination of employment. Further, while some employers offered an optional testing alternative, most employers have only allowed alternatives to vaccination strictly on very rare cases where employees can prove human rights objections – valid medical exemptions or religious reasons.
Consequently, as approximately 11% of the Ontario population remain unvaccinated, many employers have enforced their mandatory vaccination policies by terminating employment of some employees who refused to vaccinate. The question is: Is an employer legally allowed to terminate an employee for “just cause” for refusing to vaccinate? If not, the terminated employee may be able to successfully prove a case of wrongful dismissal and seek their financial severance package (termination pay and severance pay).
Unfortunately, to date, there have been no court decisions on this issue. As a result, employment law on this delicate topic remains uncertain. However, there have been a few labour arbitration decisions in unionized workplaces which can provide some guidance regarding how the courts may determine the issues involved (although these labour arbitration decisions do not apply to employees in non-unionized workplaces).
Mandatory Vaccination Policies Upheld
UFCW, Canada, Local 333 and Paragon Protection Ltd. – the labour arbitrator found that an employer’s mandatory vaccination policy was valid since it struck the right balance between the rights of employees (who refused to vaccinate) and the employer (to ensure workplace health and safety). However, a key fact in this case was that the collective bargaining agreement specifically included a requirement for employees to vaccinate, which was introduced before the COVID-19 pandemic.
Ontario Power Generation and The Power Workers Union – the labour arbitrator found that the employer’s vaccination policy was valid as it also struck the right balance between the employer and employees’ interest, especially since it offered employees who refused to take the vaccinate an alternative option to undergo COVID-19 rapid antigen test (twice per week). However, the employer was required to cover the cost for the COVID-19 testing, and the unvaccinated employees were required to self-administer the tests on their own time before reporting to work. Lastly, the labour arbitrator agreed with the employer’s decision to impose progressive discipline on unvaccinated employees, stating the following:
It is important for those individuals who are fired for choosing to not be tested to understand that they are very likely to find the termination of employment upheld at arbitration. Effectively, the employees who refuse testing will likely will have made a decision to end their career with this Company.
Mandatory Vaccination Policy Struck Down
The Power Workers Union and Electrical Safety Authority – the labour arbitrator found an employer’s vaccination policy imposing discipline on employees (including unpaid leaves of absence and employment termination) unreasonable, primarily because it it took away the previous option for employees to undergo weekly COVID-19 testing as an alternative vaccinating without a good reason. Specifically, the arbitrator found that the employer failed to establish any evidence of “workplace dangers or hazards” or a “substantial interference” in the employer’s business by no longer allowing employees the alternative option of COVID-19 testing, especially since the majority of its employees were fully vaccinated, continued to work remotely, and there was no workplace outbreak. As such, the employer was forced to change its vaccination policy to permit the alternative option of COVID-19 testing unvaccinated employees and not impose discipline on these employees.
Much of the company’s work throughout the pandemic was undertaken remotely and many employees maintain the right to work remotely under the collective agreement. However, Arbitrator Stout also noted that some employees, like inspectors, require access to third-party sites and may need to travel.
Arbitrator Stout held that the company was unable to point to a real and demonstrated risk or business need that called for the policy’s enforcement provisions. Among other things, they had never had an outbreak in their workplace, the vast majority of employees were voluntarily vaccinated, and many employees continued to work remotely. In addition, he was not satisfied that the company had proven a significant problem exists with regard to third-party access and travel, which would interfere with their operations. He was of the view that many of these sites also provide a testing alternative and that the issue of an unvaccinated employee attending at one of these sites could likely be addressed by a policy that includes a testing option. Put simply, there was no evidence that work had been significantly impeded or lost as a result of some employees (a significant minority) not being vaccinated. Unlike the above two cases, this decision was unique since (i) there was no prior requirement in the collective bargaining agreement requiring vaccination, and (ii) most employees worked remotely, as opposed to in-person.
Call Today for Help
As noted above, there is no current court decision regarding the validity of COVID-19 vaccination policies who termination of employment as discipline for employees who refuse to comply. However, it is likely court decisions will be released shortly, which will provide much needed guidance and direction regarding the implementation and enforcement of employer vaccination policies in non-unionized workplaces. Bune Law will closely monitor updates in this area and report on important new developments.
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.
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