Mandatory Vaccination in the Workplace

How can a lawyer assist when it comes to mandatory vaccination policies?

Whitten & Lublin Employment & Labour Lawyers can assist individuals to:

1. Understand how a mandatory vaccination policy applies and to interpret it;

2. To explain the applicable law to individuals so that they understand what their rights are;

3. To assist individuals in pursuing exemptions from mandatory vaccination policies due to medical or religious grounds;

4. To assist individuals in pursuing reasonable accommodation or other exemptions from mandatory vaccination policies on compassionate grounds;

5. To assist individuals who have been denied access to work if they are not yet vaccinated;

6. To assist individuals in communicating with their employers out of fear for reprisal or retaliation; and

7. To assist individuals who are threatened with or actually terminated as a result of refusing vaccination.

Mandatory Vaccinations in the Workplace

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.  More recently, the government of Ontario has required businesses to put in place a vaccination policy.

However, vaccination policies do not require employers to terminate employees.  This is an individualized assessment that businesses will have to make.  Here are some of the rights that employees have when it come to mandatory vaccinations in the workplace. 

Can you be fired or terminated for refusing a COVID-19 vaccine?

An employer cannot force an employee to take a vaccination. However, it may be able to make continued employment conditional on having received the vaccine.

If an employee refuses to comply with the employer’s vaccination policy (given they do not have any medical or religious basis), they could be terminated.

How do human rights exemptions from mandatory vaccination work?

Employers must respect an employee’s human rights.  Pursuant to human rights legislation, individuals with a medical or religious basis to refuse the vaccine must be exempted from a mandatory vaccination policy.  To the extent that these individuals can be accommodated (i.e. allowed to work from home or exempted from the policy) an employer must provide them with reasonable accommodation unless it can establish that there is legitimate undue hardship. 

Can employers demand that employees disclose their medical condition?

Traditionally, in order to obtain accommodation on human rights grounds, an employee had to produce a doctor or other practitioners note confirming that they had an illness or condition that required accommodation. 

However, some employers are insisting that employees provide the actual specific basis or diagnosis in order to justify an exemption from a mandatory vaccination policy.

In our opinion, this approach towards medical accommodation may be contrary to human rights obligations and should be closely scrutinized.

How do religious exemptions work?

An employee has to demonstrate that they are a member of an actual and legitimate religion and that it is an organizing belief of that religion not to vaccinate.  There are only three or four Religions in Canada that subscribe to the belief that vaccination is unacceptable.  If an individual is a member of one of these religions he or she should produce a letter from the organization confirming their membership.

What if an employer terminates an employee who has a valid medical or religious exemption?

An individual who was terminated despite a legitimate medical or religious exemption to vaccinate to pursue a human rights or wrongful dismissal case.  In these types of cases individuals can claim damages for discrimination in addition to wage loss recovery and in limited circumstances they can pursue cases for reinstatement along with backpay. 

If there is a termination – is it a wrongful dismissal?

If an employer terminates an individual for refusing to vaccinate, and assuming that individual does not qualify for a medical or religious exemption, this may very well be a wrongful dismissal particularly if the employer does not provide any severance package to the employee. 

In our opinion it would be difficult for an employer to justify terminating an employee without any severance if an individual chooses not to vaccinate. This can be a wrongful dismissal. Currently there are no decided court decisions that provide a viable precedent.   

What if an employer tells an employee he or she cannot work until they have received the vaccine?

If an employer refuses to allow an employee to continue to work until he or she has received the vaccines could be treated as a constructive or actual termination of employment and the employee may be able to make a claim for damages.  However this will depend on very fact specific information about the nature of the employer’s policy, the type of position of work that the employee performs in the environment that they perform that work in. 

Can an employer demand proof of vaccination status?

In most cases, yes. 

Can an employer require employees who do not vaccinate to participate in regular testing?

As an alternative to mandatory vaccinations, some employers are requiring employees to take rapid testing prior to entering the workplace.  In our opinion this may very well be a reasonable form of accommodation that an employer can impose upon employees who choose not to vaccinate without a religious or medical reason for doing so.

Who should pay for rapid testing?

If an employer is requiring rapid testing it should be asked to pay for the costs of the testing. 

Do you need workplace legal advice?

Whitten & Lublin Employment and Labour Lawyers is a nationally recognized team, assisting employees in all aspects of workplace legal disputes. Don’t take a chance with your case. Consult the law firm with a team of proficient employment and labour law lawyers.

Whitten & Lublin Toronto Employment Lawyers

Toronto & GTA: (416) 640-2667

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