Question: Do I have just cause to fire an employee if my employee refuses to be vaccinated in violation of my vaccination policy?
Employers have an obligation to keep their workplaces safe. This obligation is found in the Occupational Health & Safety Act. For this reason, many employers have implemented mandatory vaccination policies. The Ontario government has also created policies requiring some employees to be vaccinated as a term and condition of their continued employment. These vaccination policies threaten to terminate the employment of any employee who refuses to be vaccinated but is this legal?
Just cause is a very high threshold for any employer to meet. The Ontario Courts have consistently concluded that just cause is a form of capital punishment in employment reserved for the most extreme cases. It is not likely that every case where an employee refuses to be vaccinated will result in just cause for the termination of that employee’s employment. Here is why.
Many employees have been working throughout the pandemic. Some employees have worked remotely, while others have continued to attend the workplace and comply with enhanced COVID-19 safety protocols. These safety measures were implemented before vaccination was available. The same accommodations provided to employees allowed them to work productively before vaccines can be continued for those employees who do not wish to disclose their vaccination status. Employers will have difficulty convincing a judge that it is too difficult or undue hardship to continue to accommodate their employees in the same manner.
Many employees have disabilities or religious exemptions which fall under protected grounds in the Ontario Human Rights Code that exclude them from mandatory vaccination. For years, these exemptions have been recognized as credible reasons why employees are legitimately excluded from mandatory vaccination and allowed to work. Employers who refuse to acknowledge or respect these legal exemptions may be forced to respond to costly human rights applications brought by their employees.
Vaccination status is part of an employee’s medical status. Employers who make vaccination status a condition of employment are asking employees to disclose their confidential medical status related to vaccination. In the summer of 2021, a British Columbia Judge ruled that vaccination status is private and need not be disclosed. The Privacy Commissioner has also stated that any rules, regulations, or laws requiring employees to disclose their vaccination status violate privacy laws. Employers who violate laws have reduced chances of success in proving just cause.
Before creating any vaccination policy, employers should consult with a labour and employment lawyer like Gary Bennett.
