Employers are required to provide a safe workplace for employees. As such, employers may implement a policy mandating that employees be vaccinated against COVID-19; however, they must also consider the potential for employee exemptions due to human rights grounds. They should also consider alternative arrangements for employees who opt out of vaccination, such as rapid testing prior to entering the workplace, requiring additional personal protection equipment (PPE), or allowing for remote work arrangements.

Under O. Reg. 364/20, employers are obligated to comply with the advice and recommendations of public health officials relating to the operation of a business. In certain regions, including Toronto, Peel, and Ottawa, public health officials have strongly advised all employers to implement a vaccination policy. Read in conjunction with O. Reg. 364/20, all employers in these regions are required to develop a vaccination policy.

Note that the provincial government currently requires employers in high-risk settings, such as hospitals and long-term care facilities to mandate vaccination for staff.

Employers should conduct a risk assessment of the workplace as it relates to the transmission of COVID-19 by asking themselves the following questions:

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• Is there any evidence of serious health and safety risks in the workplace?
• What is the scientific evidence regarding the efficacy of vaccination as a measure for preventing the transmission of COVID-19?
• Are there less intrusive methods that may be adopted to minimize any health and safety risks?
• Does the seriousness of risk & introduction of a vaccination policy outweigh the harm to employee privacy?

Yes. Employers can ask employees to show proof of vaccination. However, employee medical information should only be used for the narrow purpose for which it is collected. An employee’s information should be kept secure at all times and should only be retained as long as necessary for the purpose for which it was collected. Medical information should never be shared with another party without the employee’s express consent.

Employers can terminate an employee for any reason, including refusing a vaccine. However, unless the employer can demonstrate just cause for the termination, they are obligated to provide the employee with reasonable notice or pay in lieu of reasonable notice. An employee’s refusal to vaccinate is not likely to be considered just cause for termination, and so an employer would be obligated to provide reasonable notice or pay in lieu, or risk a claim for wrongful dismissal.

Employers are required to provide accommodations to employees with legitimate human rights claims. If an employee is exempt from vaccination due to disability or religious beliefs, the employer must provide the employee with accommodations to the point of undue hardship. Employers can accommodate exempt employees by offering on-site rapid testing in lieu of vaccination or allowing employees to work from home.

Note that personally held beliefs against the vaccine do not satisfy the requirements for accommodation on a human rights ground.

Employees who are offered the option to resign should not accept. If an employee voluntarily resigns from their role, they forfeit any entitlement to termination pay, and potentially to Employment Insurance benefits. On the other hand, if an employer terminates an employee without just cause, they have an obligation to provide the employee with reasonable notice or pay in lieu, or risk a claim for wrongful dismissal. An employer may opt to terminate an employee for not complying with a mandatory vaccination policy; however, they will not likely be able to establish just cause for termination. As a result, they will need to pay the employee their full termination benefits.

Employees who choose to resign rather than comply with a vaccine policy may forfeit any entitlement to termination pay, severance pay, and potentially to Employment Insurance benefits unless they are able to advance a claim for constructive dismissal.

Constructive dismissal occurs when an employer makes a unilateral and significant change to the terms of the employment relationship. If an employer implements a mandatory vaccination policy and does not provide reasonable accommodation or alternative arrangements such as rapid or swab testing, or the option to work remotely, an employee could make a successful claim for constructive dismissal. If you believe you may have a claim for constructive dismissal, we strongly recommend you contact us to discuss your options before resigning, to discuss the merits of a potential claim.