Some employers have instituted mandatory vaccination policies in an attempt to protect people from the spread of COVID-19 at work. Under such policies, failure to be fully vaccinated after a particular date may result in sanctions, possibly including termination of employment.

In Ontario, an employer is entitled to terminate an employee at any time, for any reason. However, if terminated without cause, most employees are entitled to a minimum amount of notice or payment in lieu of such notice. If the employer fails to comply with this, the employee may have been wrongfully dismissed. In addition, some employees may be entitled to severance pay.

Can an employee be terminated with cause, and hence denied these entitlements, if they decline to get fully vaccinated against COVID-19 in contravention of an employer’s mandatory vaccination policy? 

Policies on Mandatory COVID-19 Vaccination

The Ontario Government has only mandated vaccination for employees working in long-term care homes. Each staff member must:

• provide proof of vaccination of each dose;
• provide a documented medical reason for not being vaccinated; or 
• participate in an educational program about the benefits of vaccination and the risks of not being vaccinated. 

The Ontario Human Rights Commission has said:

“Mandating and requiring proof of vaccination to protect people at work or when receiving services is generally permissible under the Human Rights Code (Code) as long as protections are put in place to make sure people who are unable to be vaccinated for Code-related reasons are reasonably accommodated.”

Some employers have instituted mandatory COVID-19 vaccination policies and have begun to terminate employees that have failed to comply. In one example, the City of Toronto introduced a mandatory vaccination policy on September 7, 2021, which requires employees to be fully vaccinated unless exempt for a reason relating to a protected ground set out in the Code. According to a news release, despite a 98.6% compliance rate, 461 of its employees were either unvaccinated or did not report their vaccination status by the deadline, and as a result, have had their employment terminated.

Decisions in a Unionized Context

While there has yet to be a definitive court decision in the employment context, there have been several relevant arbitration decisions involving claims by unions that mandatory vaccination policies were unreasonable.

Mandatory Vaccination Policy Held to be Unreasonable

For example, in the recent case of Electrical Safety Authority v Power Workers’ Union, the Union challenged a mandatory vaccination policy that required all employees to be fully vaccinated unless exempt under a protected Code ground. Those employees who do not comply with the policy may be subject to discipline, up to and including discharge. There was nothing in the collective agreement specifically addressing vaccinations.

Chief Arbitrator John Stout decided that the policy was unreasonable to the extent that employees may be disciplined or discharged for failing to get fully vaccinated. He noted:

“In workplace settings where the risks are high and there are vulnerable populations…, then mandatory vaccination policies may not only be reasonable but may also be necessary and required to protect those vulnerable populations. However, in other workplace settings where employees can work remotely and there is no specific problem or significant risk related to an outbreak, infections, or significant interference with the employer’s operations, then a reasonable less intrusive alternative…may be adequate to address the risks.”

The Chief Arbitrator decided that the policy was not a reasonable exercise of management rights in the circumstances and absent a specific statutory authority or provision in the collective agreement.

Mandatory Vaccination Policy is Permissible in a Different Context

However, in Bunge Hamilton Canada, Hamilton, Ontario v United Food and Commercial Workers Canada, Local 175, Arbitrator Herman upheld a policy that required employees to be fully vaccinated, except those with a medical exemption. Employees that fail to comply with the policy were not permitted to attend the place of work and were placed on unpaid leave pending a final determination on their employment status, up to and including termination.

The Arbitrator decided that the requirements to disclose vaccine status and be fully vaccinated were reasonable. In respect of the requirement to disclose, he said that:

Management can generally establish rules that require the production of employees’ medical information if necessary in order to protect the health and welfare of other employees, which would be the case here. 

The Arbitrator distinguished the Electrical Safety Authority v Power Workers’ Union decision by explaining that failure to institute this policy would place the employer in breach of its lease obligations and would jeopardize its ability to operate the business.

Possible Considerations in a Wrongful Dismissal Claim

These cases demonstrate that prospects in any wrongful dismissal claim are likely to depend on the particular circumstances of the case at hand. 

Relevant factors in determining whether an unvaccinated employee might succeed in a wrongful dismissal claim include:

• the location of the work, such as whether employees are required to attend a workplace or are capable of working from home;
• the nature of the work, for example, whether there is a heightened risk to others as a result of the work, such as exposure to vulnerable populations;
• the employee’s reason for refusing to be vaccinated, such as whether the employee has a medical exemption or religious reason, as opposed to deciding out of personal choice;
• the precise terms of the employee’s contract of employment; and
• the precise terms of the employer’s mandatory vaccination policy.

Contact Haynes Law Firm in Toronto for Advice and Representation in Wrongful Dismissal Matters

Haynes Law Firm helps employers and employees throughout Ontario achieve effective solutions to legal issues and conflict management in employment law and civil litigation. We help wrongfully dismissed employees obtain the compensation to which they are entitled. We also help employers prepare employment policies. To discuss how the employment law team at Haynes Law Firm can assist you, please contact us online or call us at 416.593.2731.