Employers’ duty to maintain workplace safety with vaccination policies in place

Employers have a duty to provide a safe workplace as required by the Ontario Occupational Health and Safety Act, which includes protecting workers from hazards related to infectious diseases. Amid the COVID-19 pandemic, all businesses that are open shall develop a safety plan, according to relevant Ontario regulations. However, the above-mentioned legislation and the Employment Standards Act do not directly address the enforcement of employer vaccination policies for workers.

Depending on the particulars of different workplaces, many employers may nevertheless choose to have vaccination policies to control workplace health and safety risks and maintain business operations. Suppose a workplace has a legitimate mandatory vaccination policy in effect, which unambiguously states that refusing a COVID-19 vaccine could lead to workplace discipline, including termination of employment. In that case, an employee may be terminated for violating this policy. However, it is important to note that Ontario sets a high bar for termination with cause. As such, many employment lawyers have the opinion that refusing to be vaccinated would likely not meet the threshold required for a termination for cause.

Employees’ human rights under the Ontario Human Rights Code – vaccination policies

In Ontario, employers have the right to terminate non-unionized employees’ employment without cause, though this right is not risk-free. For instance, if such termination is discriminatory under the Ontario Human Rights Code, the terminated employee may have a human rights claim or a wrongful dismissal claim against the employer.

Some employees may not be able to get the COVID-19 vaccine due to religious reasons or medical conditions. According to the Ontario Human Rights Code (the “Code”), employees have a right to be free from discrimination because of religion, disability and other enumerated grounds. It is important to note that not every medical condition is a type of disability within the meaning of the Code. Further, political beliefs are not a protected ground of discrimination under the Code.

Employees requesting an exemption from vaccination policies may need to give specifics of the disabilities that they say impact their ability to get vaccinated (without breaching their privacy) to engage the employers’ duty to accommodate.

Employers’ duty to accommodate to the point of undue hardship

Pursuant to the Code, an employer has a duty to accommodate employees based on Code-protected grounds to the point of undue hardship. Examples of undue hardship include health and safety risks and financial hardship. Employers usually bear the burden of proving undue hardship.

In each case, employers will be required to assess all the relevant factors in the workplace to determine if mandatory vaccination is needed, and if so, what alternative solutions exist for employees who cannot get vaccinated due to Code-protected grounds and are unable to follow-through the vaccination policies set in place. In a wrongful dismissal lawsuit, if an employer fails to prove they have accommodated an employee to undue hardship before the termination, the employer may be liable for damages. Otherwise, the termination may be justified.

Please note that this article does not constitute legal advice. To better understand vaccine-related issues during these unprecedented times, we encourage employees and employers to seek legal advice. We at Whitten & Lublin are happy to provide insight and advice into your specific circumstances. If you are looking for employment lawyers and would like more information about what Whitten & Lublin can do for you, please contact us online or by phone at (416) 640-2667 today.

Author: Luna Li