Mandatory Vaccination

Refusing to comply with your employer’s mandatory vaccine policy could lead to termination

While some employers have recently dropped their mandatory vaccination policy for Covid 19, other employers continue to maintain their policy of mandatory vaccination. What does this mean for you if your employer has maintained their mandatory vaccination policy and you are not comfortable being vaccinated for Covid-19.

Mandatory Vaccine

Can your employer force mandatory vaccination in the workplace?

No employer has the right to force you to take any form of vaccination. However, some employers have made the decision to terminate employees or to refuse to allow them to return to work if they are unvaccinated. In most cases, this is a wrongful termination. While there are potentially a few scenarios where mandatory vaccination policies may be considered appropriate (such as long-term care homes or at hospitals), the vast majority of workplaces cannot justify a termination of employment for just cause due to vaccine status.

Can you be fired for refusing a Covid-19 vaccine?

Your employer cannot force you to take a vaccination. However, it may be able to make continued employment conditional on having received the vaccine. If you refuse to comply with your employer’s vaccination policy (given you do not have any medical or religious basis), you could be terminated. However, in most scenarios this type of termination will require a severance package.

How do human rights exemptions from mandatory vaccination work?

Your employer must respect your human rights. Pursuant to human rights legislation, individuals who have a medical or religious basis to refuse the vaccine, must be exempted from a mandatory vaccination policy. If you have a medical or religious reason protected by human rights, then your employer is expected to provide you with reasonable accommodation (i.e., allow you to work from home or exempt you from the policy) unless it can establish that there is legitimate undue hardship in doing so.
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Can your employer demand that you disclose your medical condition?

Traditionally, to obtain accommodation on human rights grounds, you would have to produce a doctor or other practitioners note confirming that you had an illness or condition that required accommodation. However, some employers are insisting that employees reveal the actual specific basis or diagnosis 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?

You would have to demonstrate that you have a sincerely held understanding of your religious beliefs which prevents your form obtaining the vaccination.

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What if your employer terminates you and you have a valid medical or religious exemption?
If you were terminated despite having a legitimate medical or religious exemption to vaccinate, you can pursue a human rights or wrongful dismissal case. In these types of cases, you can claim damages for discrimination in addition to wage loss recovery and in limited circumstances you may be able to pursue reinstatement along with backpay.
If you are terminated, is it a wrongful dismissal?

If you do not qualify for a medical or religious exemption, your employer can choose to terminate you for refusing to vaccinate, but in many cases your employer will still owe you a severance package.

If the employer’s mandatory vaccination policy is a disproportionate intrusion upon employee privacy rights and bodily autonomy relative to the extent of the health risk the policy is intended to curtail, then an employer cannot say it is misconduct to refuse the vaccine. Generally, employers do not need to show misconduct to terminate a worker. If they choose to dismiss the employee, they owe the usual severance that would be payable in any other unremarkable termination of employment.

In our opinion, it would be difficult for most employers to justify terminating you without any severance for refusing to vaccinate. There may be high-risk workplaces where an employer can more easily justify the requirement. But in most other cases dismissal for refusing to vaccinate may be a wrongful dismissal entitling the employee to severance pay. Currently there are no decided court decisions that provide a conclusive precedent.

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What if your employer tells you that you cannot work until you receive the vaccine?
If your employer refuses to allow you to continue to work until you receive the vaccine, this could be treated as a constructive or actual termination of employment, and you may be able to make a claim for compensation. However, this depends on very fact specific information about the nature of your employer’s policy, the type of position of work that you perform in the environment that you perform that work in. The answer depends on whether the intrusiveness of the mandatory policy is a proportionate response to the extent of the health risk it hopes to curtail.
Can your employer demand proof of vaccination status?

In most cases - yes

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Can your employer require you to participate in regular testing if you have not been vaccinated?

As an alternative to mandatory vaccinations, you employer may require you to take rapid testing prior to entering the workplace. Their ability to require testing depends on very fact specific information about the nature of your employer’s policy, the type of position of work that you perform in the environment that you perform that work in. The answer depends on whether the intrusiveness of the mandatory policy is a proportionate response to the extent of the health risk it hopes to curtail.

Who should pay for rapid testing?

If your employer is requiring rapid testing, then it should pay for the costs of the testing.

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How can Whitten & Lublin employment lawyers assist you with mandatory vaccination policies?

We can help you in the following ways:

  • Understand how a mandatory vaccination policy applies and to interpret it for you
  • Explain the applicable law to you so that you understand what your rights are
  • Assist you in pursuing exemptions from mandatory vaccination policies due to medical or religious grounds, if applicable
  • Help you in pursuing reasonable accommodation or other exemptions from mandatory vaccination policies on compassionate grounds
  • Assist you if you have been denied access to work if you have not yet vaccinated
  • Assist you in communicating with your employer out of fear for reprisal or retaliation
  • Assist you if you have been threatened or terminated because of refusing to vaccinate

We have your back. Take control with Whitten & Lublin in your corner.

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