Employment Lawyer Toronto

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Can Your Employer Require You to Take the COVID-19 Vaccine? Can You be Fired if You Refuse?

Employers have an important say in the ongoing debate over COVID-19 vaccine mandates. In fact, some employers have already taken important precautionary measures in response to COVID-19, including implementing social distancing and masking requirements. As of this week, this includes banks, universities and certain levels of government, such as the City of Toronto. While many of those requirements were ordered by public health authorities, the advent of  COVID-19 vaccines has opened up a new realm for employers to consider – forcing employees to vaccinate.

At this time, governments have not legally required employers to implement mandatory vaccinations in their workplaces, which reflects the broader approach allowing citizens to make their own personal choices. However, the tide is slowly turning.

In the past week alone, many employers across Ontario have come out with a clear and more aggressive workplace policy – if their employees refuse to get a COVID-19 vaccine, their employment will be terminated. Is that legal?

Generally speaking, yes – with exceptions.

While employers cannot directly force an employee to get vaccinate, they can do so indirectly by implementing health and safety policies, where vaccination remains the cornerstone in preventing the spread of COVID-19 in the workplace. This may well be justified by an employer’s legal requirement under the Ontario Occupational Health and Safety Act‘s to protect the health and safety of everyone at the workplace (e.g., employees, customers, suppliers, etc.). In other words, employers must take reasonable steps to provide and maintain a working environment that is safe and free of risks to health. An obvious start would be for employers to ensure any workplace policies are consistent with up to date information from medical and Public Health officials in order to justify them under health and safety reasons.

As a result, employment law generally lands heavily in favour of employers’ right to require vaccinations for its employees – with exceptions. The primary exceptions human rights law recognizes to justify employees refusing a COVID-19 vaccine are valid medical reasons (disability) and strict religious exemptions (creed), as protected under the Ontario Human Rights Code and Canadian Human Rights Act.

In other words, employment law requires employers to balance employees’ right to non-discrimination and civil liberties with public health and safety measures. This means that  an employer can limit an employee’s right to be free from discrimination if it can prove that refusal to vaccinate creates serious health and safety risks in the workplace (e.g., nursing homes) or would amount to undue hardship (cost or health and safety).

Put simply, an employee’s right to be free from discrimination is not absolute, even in cases of disability or religious reasons for refusing vaccines.  This is consistent with the human rights law’s longstanding policy allowing employers, in limited circumstances, to impinge on employees’ human rights if they can establish:

  • a bona fide occupational requirement (factor that is essential to performing the duties of a particular position)
  • accommodation to the point of undue hardship (e.g., the cost is so extreme it would seriously interfere with running the business, as opposed to being merely a business inconvenience or customer preferences).

In fact, the Ontario Human Rights Commission has ruled on this specifically, stating as follows:

“Under the Human Rights Code (Code), an employer may not discipline or terminate an employee who has been diagnosed with COVID-19 or is perceived to have COVID-19 (because, for example, they are exhibiting certain symptoms). Similarly, an employer may not discipline or terminate an employee if they are unable to come to work because medical or health officials have quarantined them or have advised them to self-isolate and stay home in connection with COVID-19.”

Disability (Medical Conditions)

An employee may be able to justify refusing a COVID-19 vaccine on the basis of disability (specific medical conditions). As a result, employers may have a legal obligation under human rights law to “accommodate” that employee’s disability (i.e., take steps to ensure an employee is  treated fairly and can participate equally in the workplace, such as by putting in place alternative measures to support an employee’s health condition). However, an employer’s duty to accommodate employees under human rights law stops at the point where an employer can prove unde hardship based on cost, or health and safety (see above).

Creed (Religious Reasons)

The Ontario Human Rights Code does not define “creed” (religious) as a prohibited ground of discrimination. However, the Ontario Human Rights Commission’s Policy on preventing discrimination based on creed sets a few guiding principles that can be used when determining whether a person’s objection to a COVID-19 vaccine based on religious reasons is justified. This includes considering whether the belief is:

  • Sincerely, freely and deeply held
  • Integrally linked to a person’s identity, self-definition and fulfillment
  • Part of a particular and comprehensive, overarching system of belief that governs one’s conduct and practices
  • Addressing ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a Creator and/or a higher or different order of existence
  • Connected in some way to an organization or community that professes a shared system of belief

Generally, the Human Rights Code will not protect an employee’s subjective belief or personal preference against COVID-19 measures, such as wearing a mask or receiving a vaccine, on the basis of creed (religion). That said, as noted above, an employer’s requirement for employees to wear a mask or prove vaccination may be a legitimate and bona fide requirement for health and safety reasons, especially when serious risks to public health and safety are shown to exist (this is always determined on a case-by-case basis).

Severance Pay and Employees Fired for Refusing COVID-19 Vaccine

An employer can terminate an employee’s job either “for cause” or “without cause.” In a termination for cause, an employer does not have to provide the employee prior notice of termination, or severance pay. However, in a termination without cause, an employer must provide the employee  prior notice of termination, or severance pay.

With respect to COVID-19, the simple answer is an employer may (in certain circumstances) terminate an employee’s job “without cause”, but the employee will likely be entitled to an appropriate severance package. However, the law is still developing as the COVID-19 pandemic continues, so employers must carefully consult with an employment lawyer for proper guidance. In any event, employers may be faced with legitimate claims by employees whose employment is terminated, such as wrongful dismissal, discrimination, reprisal, bad faith damages, and so on. At this time, the waters are muddy, and both employers (and employees) must tread carefully.

Termination for Cause

An employer will be hard-pressed to justify firing an employee “for cause” for refusing to vaccinate (this is a very high standard to prove in almost every circumstance). For instance, the Employment Standards Act, 2000 requires an employer prove the employee is guilty of intentional wrongdoing:

Employees not entitled to notice of termination or termination pay

3. An employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.

In the rare occasions where an employer can prove an employee’s misconduct was sufficiently serious, it may be able to get away with having to provide minimum notice of termination (or termination pay), benefits continuation and severance pay. This is seldom the case.

Termination Without Cause

This is the default step whenever employers make a decision to terminate an employee’s job. In such cases, they employer must provide the employee with notice of termination, or severance pay. In fact, in a termination without cause, an employer can terminate an employee’s job for any reason (or no reason at all), as long as the termination is not influenced by discriminatory reason.

In  other words, an employer’s discretion to terminate employment is not absolute. This is why it is critical for employers to ensure they steer clear of discrimination when responding to an employee’s refusal to vaccinate (or cooperate with COVID-19 health and safety measures. Otherwise, employers may face a legitimate claim of discrimination by employees to who refuse to vaccinate on the basis of medical condition (disability) or religious reasons (creed).

It is always wise for employers to consult with an experienced employment lawyer when deciding how to respond to employee refusal to vaccinate on the basis of accommodation of human rights.

When an employer can justify that terminating an employee’s job is not discriminatory, but simply a response to failure to follow a health and safety rule requiring vaccination, it must provide appropriate severance pay in a financial severance package. Otherwise, an employer may face a wrongful dismissal claim.

How Much Severance Pay?

As a legal requirement, the employer must provide the minimum amounts required under the Employment Standards Act, 2000. However, this only applies if the employee has signed a valid employment contract that properly limits their severance entitlements to the statutory minimums. Otherwise, employers are required to provide much compensation by paying common law pay in lieu of notice of termination, which takes into consideration the following factors about the employee:

  • years of service
  • age
  • job (title, responsibilities, salary, etc.)
  • education, skills, training and work experience
  • availability of similar employment
  • other relevant factors (disability, pregnancy etc.)

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.

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