Your employer has implemented a mandatory COVID vaccine policy. You do not want to get vaccinated. Your employer has told you you will be terminated for just cause if you don’t get vaccinated.
This blog discusses your legal rights and obligations.
You are required to work in compliance with the Occupational Health & Safety Act (“OHSA”) which, among other things, promotes the prevention of workplace diseases. That means following public health requirements which may include not reporting to work if you have a COVID symptom, masking, and physical distancing.
An employer has the right to implement policies and most employers will be relying on their general obligation under OHSA to provide a safe work environment and to take every precaution reasonable in the circumstances to protect their workers in order to support any vaccination policy. However, the employer must exempt you from a policy if you have rights under the Ontario Human Rights Code. For example, if you can’t get vaccinated for a medical reason then you can ask the employer to accommodate your disability by exempting you from the policy. If you can’t get vaccinated because of creed (ie a religious belief) then you can make a similar request.
You could also ask for an exemption from the policy because you are prepared to submit to additional mitigation measures which will limit the chance you will spread COVID to your co-workers. For example, continuing to work from home (if applicable) or accepting a hybrid schedule where you work some days at home and some days at work. If the employer wants you to report to work then you could agree to regular rapid tests, work in locations where you don’t have access to other employees, work at times when few other employees are present, and/or agree not to attend social events.
If you don’t have a human rights exemption and the employer will not exempt you from the policy and you refuse to comply the employer must decide whether to discipline you. This discipline can be in the form of a written warning, a layoff, a suspension or a termination.
If the employer lays you off or suspends you without pay, or terminates your employment without notice then depending on the circumstances you may have been constructively dismissed or wrongfully dismissed.
If the employer terminates your employment for refusing to comply with the policy and does not provide you with any notice of termination or any termination pay then it must prove it had just cause to terminate you; otherwise, it is required to provide you with termination pay.
For long-service employees with no prior discipline who have offered to submit to additional mitigation measures in order to reduce the chances of spreading the virus a judge could conclude that a termination is too harsh a disciplinary response and conclude you were wrongfully dismissed and order the employer to provide you with termination pay. When determining whether just cause exists, Ontario judges generally apply the following test:
Cause is determined by an objective contextual and proportional analysis. A finding of misconduct does not, by itself, give rise to just cause; the question is whether, in the circumstances, the behaviour is such that the employment relationship could no longer viably subsist. There must be a balance struck between the severity of an employee’s misconduct and the sanction imposed. The factors considered include the employee’s tenure, employment record and the seriousness of the misconduct:…
To my knowledge, no judge in Ontario has considered the issue of whether refusing to get vaccinated for COVID is just cause to date.
If your employer is threatening to terminate you for refusing to get vaccinated then call an employment lawyer to discuss your case before making a decision.
MacLeod Law Firm has been providing employees in Toronto and Barrie with labour and employment law advice and representation since 1989. If you are an employee with questions about your employment relationship, please call us at 647-204-8107 to speak with a lawyer.